OTTAWA, Ontario, the 23rd day of November 2005
PRESENT: THE HONOURABLE MR. JUSTICE PAUL U.C. ROULEAU
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
ROULEAU, J.
[1] This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of a decision delivered on May 4, 2005 by Patrizia Passaglia, Immigration Officer, refusing the sponsorship application under the “Spouse or Common-law Partner” class, as well as the application for permanent residence submitted in Canada on humanitarian and compassionate grounds.
[2] The applicant, Clautilde Djipou Nziko, is from Cameroon. She arrived in Canada on an undetermined date and made a claim for refugee protection at the Montréal offices of CIC on February 27, 2002. Ms. Nziko first met her future husband, Brunel St-Cyr, on February 15, 2003. They began living together on March 1, 2003.
[3] Mr. St-Cyr obtained a divorce from Carmina Lucinda Williams on January 5, 2004. The applicant married Mr. St-Cyr on March 13, 2004.
[4] On February 16, 2004, an Immigration and Refugee Protection Board (IRB) panel in Canada refused the applicant’s claim for refugee protection, having found that she lacked credibility.
[5] On February 23, 2004, the applicant filed in Federal Court an application for leave and for judicial review of the IRB’s decision dated February 16, 2004 (IMM-1622-04). The application was dismissed on May 25, 2004, by Martineau J.
[6] On September 15, 2004, the applicant filed a request for exemption from the immigrant visa requirement.
[7] Relations between the couple became strained in the fall of 2004. In September 2004, a restraining order was issued against Mr. St-Cyr, prohibiting him from coming within 100 metres of his spouse’s home and/or workplace. In addition, Mr. St-Cyr was jailed a number of times between November 2004 and January 2005 for breaching the restraining order against him. In October 2004, Mr. St-Cyr filed a complaint of assault against his spouse after she allegedly attempted to [translation] “wreck his car”. Mr. St-Cyr withdrew his assault complaint on April 20, 2005, the date of the applicant’s appearance.
[8] On May 4, 2005, the Immigration Officer refused the application for permanent residence in Canada on humanitarian and compassionate grounds.
[9] The applicant seeks to have the decision dated March 4, 2005 overturned. Her application for judicial review is based on the following grounds:
(1) the Immigration Officer based her decision on erroneous findings of fact made in a perverse and capricious manner when she ruled that the marriage was not a bona fide one;
(2) the Immigration Officer based her decision on evidence that she did not bring to the applicant’s attention and, incidentally, did not give the applicant an opportunity to respond to it;
(3) the Officer erred in her analysis of the integration component; and
(4) the Officer’s findings demonstrate a lack of impartiality.
[10] The respondent claims that the panel’s conclusions are not patently unreasonable, given the omissions and inconsistencies in the applicant’s evidence. Moreover, the respondent suggests that the applicant has not exhausted every possible recourse in her country of origin.
[11] In terms of the part of the decision relating to “sponsorship”, the respondent alleges that the Officer was justified in not being convinced of the bona fides of the marriage. According to the respondent, the onus was on the applicant to make her case and not on the Officer to ask her to do so.
[12] In terms of the part of the decision concerning the application on humanitarian and compassionate grounds, the respondent alleges that the Officer’s assessment of the facts was not unreasonable.
[13] Moreover, the respondent alleges that the Officer did not demonstrate bias in identifying gaps in the applicant’s evidence.
(1) Did the Immigration Officer base her decision on erroneous findings of fact made in a perverse or capricious manner when she found that the marriage was not a bona fide one?
(2) Did the Immigration Officer base her decision on evidence that she did not bring to the applicant’s attention and, incidentally, not give the applicant an opportunity to respond to it?
(3) Did the Officer err in her analysis of the integration component?
(4) Do the Officer’s findings demonstrate a lack of impartiality?
ANALYSIS
Did the Immigration Officer base her decision on erroneous findings of fact made in a perverse or capricious manner when she found that the marriage was not a bona fide one?
[14] The Immigration Officer began by assessing Ms. Nziko’s application under the new policy on spouses and common-law partners announced by the Minister of CIC on February 18, 2005 (sponsorship application). The policy allows any non-Canadian who is the subject of a sponsorship undertaking and whose spouse or common-law partner is a Canadian citizen or permanent resident to have his or her application assessed under the Spouse or Common-law Partner in Canada class. Therefore, under paragraph 124(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations), the applicant had to prove that she was the spouse or common-law partner of a sponsor and lived with this sponsor in Canada.
[15] The Immigration Officer determined that the applicant had not proven that she and her partner lived together in a conjugal relationship. Furthermore, the Officer found that the marriage between the applicant and her assisting relative was not a bona fide one. On this point, the Officer noted the following:
[translation]
The applicant and the sponsor apparently first met on February 15, 2003, began to cohabit two weeks later on March 1, 2003, and were married on March 13, 2004, one month after the application for leave for judicial review by the Federal Court was dismissed on February 23, 2004. [Emphasis added.]
[16] In fact, it was on May 25, 2004 that Martineau J. dismissed the applicant’s application for judicial review, as indicated in IMM‑1622-04. A little later in her decision of May 4, 2005, the Immigration Officer makes the same error of fact again:
[TRANSLATION]
Moreover, in the interview, I noted an absence of common activities, future plans, connections, a degree of financial or emotional interdependence, or desire to reconcile after a period of disagreement. Also noticeably absent from the file: documents, cards, photos or notes indicating some relationship as a couple. I must also point out the very short time between dismissal of the application for judicial review and the date of the wedding, and the very short period between when the couple stated that they met and when they decided to cohabit. [Emphasis added.]
In view of these facts, they have not convinced me that they are still living in a conjugal relationship and leading a life together as a couple, as we conceive of it, with common activities, pastimes and plans. Moreover, they have not convinced me that they are living under the same roof, and I am even less convinced that this is not a marriage for immigration purposes. [Emphasis added.]
[17] The Immigration Officer relied on this error of fact again as a partial basis for her refusal to waive the visa requirement on humanitarian and compassionate grounds:
[translation]
The applicant arrived in Canada on an undetermined date and applied for refugee status at CIC Montréal on February 27, 2002. She apparently met her spouse on February 15, 2003, and they began to cohabit on March 1, 2003. The IRB panel found that the application was not credible on February 16, 2004, and on February 23 the application for leave for judicial review was dismissed. The applicant and her sponsor were married on March 13, 2004. As of today, the sponsorship application under the Spouse or Common-law Partner class under the Regulations is refused because the couple have not convinced me that their marriage is a bona fide one . . . . [Emphasis added.]
. . .
As regards her marriage, the application was refused, as its bona fides was in question. I am therefore of the opinion that separation from her partner cannot be considered disproportionate hardship . . . . [Emphasis added.]
[18] Paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C., 1985, c. F-7, allows the Federal Court to overturn the decision of a federal board, commission or other tribunal where it based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. In her statement of facts, the Officer indicated February 23, 2004 as the date when Martineau J. dismissed the application for judicial review.
[19] Having said this, I must add that not all erroneous findings of facts allow the Federal Court to stay the decision of a federal board, commission or other tribunal. In Amevenu v. Canada (Solicitor General), [1994] F.C.J. No. 2065 (QL), (1994) 88 F.T.R. 142, Cullen J. set out the circumstances justifying judicial interference for an erroneous finding of fact. In the case at bar, it is clear that the Officer made an erroneous finding of fact; she gave the incorrect date three times. On the other hand, it is clear that this finding was not made in a perverse or capricious manner.
[20] In her decision, the Officer also offered other grounds for doubting the bona fides of the marriage.
[translation]
Moreover, in the interview, I noted an absence of common activities, future plans, connections, a degree of financial or emotional interdependence, or desire to reconcile after a period of disagreement. Also noticeably absent from the file: documents, cards, photos or notes indicating some relationship as a couple . . . .
[21] Had it not been for that error of fact, it is conceivable that the Immigration Officer might still reasonably have reached the same conclusion that the marriage was not a bona fide one.
Did the Immigration Officer base her decision on evidence that she did not bring to the applicant’s attention and, incidentally, not give the applicant an opportunity to respond to it?
[22] The applicant alleges that the Officer used some of the evidence and failed to confront her with it before finding that the marriage was not a bona fide one. Without identifying the specific evidence in question, the applicant argues that the Officer erred in doubting the bona fides of her marriage when her testimony, as well as that of her husband, clearly showed that their marital relations were bona fide. The applicant therefore alleges that, in finding that the marriage was not bona fide, the Officer did not assess the content of her evidence in a reasonable manner. The applicant also argues that she was prepared to provide any evidence relating to her marriage, although the Officer did not ask for any.
[23] In view of the decision in Owusu v. Canada (Minister of Citizenship and Immigration), 2003 FTR 94, [2003] F.C.J. No. 139 (QL), it is clear that the onus in the case of an application for exemption from the visa requirement on humanitarian and compassionate grounds lies with the applicant. At paragraph 7 of Prasad v. Canada (1996), 34 Imm. L.R. (2d) 91 (F.C.T.D.), Muldoon J. writes the following concerning judicial review of a visa officer’s decision:
The onus is on the applicant to satisfy the visa officer fully of all the positive ingredients in the applicant's application. It is not for the visa officer to wait and to offer the applicant a second, or several opportunities to satisfy the visa officer on necessary points which the applicant may have overlooked.
[24] The onus is therefore on the applicant to file any material evidence demonstrating the bona fides of the marriage.
[25] The applicant has not succeeded in demonstrating that the Officer’s findings were unreasonable in terms of the bona fides of the marriage. Unless the decision has been proven unreasonable, the Court cannot and must not substitute its opinion for that of the Immigration Officer. The Officer reasonably found that the marriage was not bona fide. While her assessment of the credibility of the evidence is brief, it does mention the grounds on which it is based.
Did the Officer err in her analysis of the integration component?
[26] In her decision, the Officer found that the applicant would not be subjected to unusual and undeserved or disproportionate hardship if she submitted a permanent residence application from outside Canada, as required under the Act.
[27] According to the Officer, the applicant’s life will not be at risk if she returns to Cameroon, since the threats relate to the human rights situation faced generally by other individuals in that country and are not a personalized risk requiring special attention. In her application for permanent residence, the applicant stated that she owns a company called Air Afrique dedicated to hairdressing and the sale of entertainment products. She also stated that she employs a number of Canadian citizens and permanent residents. However, the Officer doubted the applicant’s credibility on the latter point, as the applicant had submitted no evidence in this regard. The Officer also stated that, after researching the business, she found that it had no fixed address and that its telephone numbers were no longer in service. The Officer stated that she had informed the applicant of the results of her research.
[28] The Officer also ascertained that the applicant had no family connection in Canada or, if she did, it was too insignificant to mention, since the applicant denied knowledge of the presence of a sister in Canada. All the other members of her family, including her own daughter, lived in Cameroon.
[29] The Immigration Officer accordingly found that the applicant’s connections or habits were not so solid, grounded or essential that they would have unfortunate effects on her life, this despite the fact that she had spent three years in Canada.
[30] Here again, the applicant has failed to demonstrate that the Officer’s decision was unreasonable. Given the facts on record, the Officer was reasonably entitled to draw the inferences and conclusions that she drew.
Do the Officer’s findings demonstrate a lack of impartiality?
[31] The applicant claims that the decision by the Immigration Officer demonstrates that she was biased.
[32] The test applicable to a reasonable apprehension of bias followed by Canadian courts was set out in Committee for Justice and Liberty v. The National Energy Board, [1978] 1 S.C.R. 369:
[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information . . . . [T]hat test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude . . . ” .
[33] This test has a two-part objective element: the person examining the allegation of bias must be reasonable, and the apprehension of bias must itself be reasonable having regard to the circumstances of the case. In R. v. R.D.S., [1997] 3 S.C.R. 484 at page 532, Cory J. also asserted that "[t]he onus of demonstrating bias lies with the person who is alleging its existence”. In Beno v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia), [1997] 2 F.C. 527 (C.A.), the Court held that there is a presumption that a decision maker will act impartially.
[34] In the instant case, the applicant provides no support for her claims concerning her reasonable apprehension of bias by the Officer. At most, the applicant relies on the fact that she disagrees with the Officer’s findings. Obviously, that is insufficient to demonstrate a reasonable apprehension of bias.
JUDGMENT
In view of the fact that there are no grounds for intervention, the application for judicial review of the decision of May 4, 2005 is dismissed.
Deputy Judge
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3216-05
STYLE OF CAUSE: CLAUTILDE DJUIPOU NZIKO v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 17, 2005
REASONS FOR JUDGMENT The Honourable Mr. Justice
AND JUDGMENT BY: Paul U.C. Rouleau
APPEARANCES:
Marie-Josée L’Écuyer FOR THE APPLICANT
Sherry Rafai Far FOR THE RESPONDENT
SOLICITORS OF RECORD:
Marie-Josée L’Écuyer FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada