Calgary, Alberta, September 12, 2006
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision of an Immigration Officer that the applicant did not meet the requirements for a positive decision under the policy on spouses and common-law partners in Canada, and secondly that there were insufficient humanitarian and compassionate considerations to warrant an exemption from the normal legislative requirements pursuant to subsection 25(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“the Act”).
BACKGROUND
[2] The applicant is a citizen of Ghana. He arrived in Canada in January 1999 and made a claim for refugee protection in February 1999. His claim was rejected by the Refugee Protection Division on May 26, 2000 and leave for judicial review of that decision was denied on October 27, 2000. He then filed an application for an exemption on humanitarian and compassionate (“H&C”) grounds which was received for processing in March, 2001. Additional information was submitted in October, 2002 and again, by different counsel, in April and May of 2004.
[3] On February 18, 2005 a new policy was announced by the Minister of Citizenship and Immigration Canada (“CIC”) which allowed H&C applications previously submitted which had not been finalised as of that date, to be converted to spousal in Canada applications if the H&C applicant was married, in a common-law or conjugal relationship. CIC determined that the applicant was eligible under this new policy and his application was converted to a spousal in Canada application.
[4] On April 7, 2005 the applicant’s present counsel submitted supporting information indicating that the applicant began living in a common-law relationship with Fernanda Beshir, a permanent resident of Canada, in February 2003. An interview with both the applicant and Ms. Beshir was convened for June 13, 2005. Following the interview, the applicant’s file was referred to the Pre-removal Risk Assessment Unit. A negative Pre-Removal Risk assessment was completed on November 2, 2005. The spousal in Canada sponsorship application was denied on January 23, 2006.
DECISION
[5] In her decision, the officer stated that the applicant had not shown that he met the requirements of section 4 Immigration and Refugee Protection Regulations, 2002, SOR/2002-227 as there was little evidence that he was in a genuine marriage and that it was not entered into primarily for the purpose of acquiring permanent resident status in Canada.
[6] In her notes to file, the officer stated that there were several factors casting doubt on the genuineness of the common law relationship including discrepancies regarding their first meeting and introduction, incomplete knowledge of each other’s family, inconsistencies regarding financial arrangements, and claims of being “single” made by the spouse on her 2003 and 2004 income tax returns and by the applicant on his 2003 tax return.
[7] The notes also indicate that the officer considered a number of other H&C factors submitted by the applicant, including the fact that he is under medical care for an ulcer, the applicant’s level of establishment in Canada, and the applicant’s fear in returning to Ghana. The officer concluded that there was insufficient objective evidence before her to conclude that humanitarian and compassionate considerations exist to warrant an exemption from the requirements of the Act.
ISSUES
[8] The issues as identified by the applicant are as follows:
1. Did the officer err in finding that the common law relationship was not genuine?
2. Did the officer breach a principle of natural justice by failing to provide adequate reasons?
RELEVANT LEGISLATION
[9] Section 4 of the Immigration and Refugee Protection Regulations, 2002, SOR/2002-227 states:
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4. For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act. |
4. Pour l’application du présent règlement, l’étranger n’est pas considéré comme étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant adoptif d’une personne si le mariage, la relation des conjoints de fait ou des partenaires conjugaux ou l’adoption n’est pas authentique et vise principalement l’acquisition d’un statut ou d’un privilège aux termes de la Loi. |
ANALYSIS
Standard of Review
[10] The parties agree that the standard of reasonableness applies when reviewing a humanitarian and compassionate decision: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 61-62; Lee v. Canada (Minister of Citizenship and Immigration), 2005 FC 413 at para.6. A decision will be unreasonable only if there is no line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived: Law Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247 at paras. 55-56. The decision must be able to withstand a "somewhat probing examination": Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
[11] I note that in an analogous case, a family class sponsorship application based on marriage, Justice Michel Shore held that a finding of fact as to whether the marriage was genuine or not was subject to the standard of patent unreasonableness: Canada (Minister of Citizenship and Immigration) v. Navarrete 2006 FC 691 at paragraph 17. This was in relation to a decision made by the Immigration Appeal Division under the comparable provisions of the former regulation. There appears to be no reason for this Court to apply a different standard of review to factual findings made by immigration officers under s.4 of the current regulations.
Preliminary Question of Interpretation:
[12] The parties are in general agreement that section 4 of the Regulations must be read conjunctively, that is the questioned relationship must be both not genuine and entered into primarily for the purpose of acquiring any status or privilege under the Act. That would seem to follow from a plain reading of the enactment and is supported by several decisions of this Court: Sanichara v. Canada (Minister of Citizenship and Immigration) 2005 FC 1015 (at para. 16); Singh v. Canada (Minister of Citizenship and Immigration), 2006 FC 565 (at para. 7).
[13] A conjunctive interpretation leaves open the possibility that a marriage which was originally entered into for the purpose of gaining status under the Act may become genuine and therefore not excluded under the regulation.
[14] The respondent submits, however, that the intent of the makers of the regulation was to assess the circumstances surrounding the date the relationship was entered into. The intention of the regulation would be subverted if the passage of time allows for a genuine common-law marriage to be created. The Court is urged to interpret the regulation as intended to prevent people from acquiring status or privileges under the Act by means of a common-law relationship when the benefits thus claimed were a primary reason for the creation of the relationship.
[15] The question the immigration officer must determine, the respondent says, is whether the common-law relationship was genuine from the outset. Support for this proposition is found in jurisprudence interpreting the former regulation: Horbas v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 359 (T.D.)
[16] In Horbas, Justice Strayer, as he then was, stated:
It should first be observed that the test is a double test: that is, the spouse is disqualified under subsection 4(3) only if the marriage is entered into primarily for the purpose of gaining admission to Canada and not with the intention of residing permanently with the other spouse.
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It must be kept in mind that in order to reject such an application on the basis of this subsection, it must be found that there is both a marriage entered into by the sponsored spouse primarily for purposes of immigration and lack of intention on his or her part to live permanently with the other spouse.
[17] Section 4 (3) of the Immigration Regulations, 1978, SOR/78-172 stated:
The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse. [Emphasis added]
As noted in Horbas:
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... (3) Paragraph (1)(a) does not apply to a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse. |
[18] It is clear that the test to be applied under the old regulation for determining whether a marriage was genuine was the time of the marriage itself. However, the new regulation does not state that this is the time at which the relationship is to be assessed. It speaks in the present tense for a determination of the genuineness of the relationship and in the past tense for assessing the purpose for which it was created. This seems to be consistent with the practice followed by Immigration Officers in assessing spousal sponsorship applications. It appears, from the cases which the Court has seen, that in interviews with claimants and their putative spouses the officers focus on whether there is a continuing relationship.
[19] The drafters of section 4 may thus have left the door open to marriages of convenience found to be sincere and enduring at the time of the assessment. But does that avail the applicant in these proceedings? Regardless of the interpretation to be given to section 4 of the regulations, the officer in this case, in the exercise of her discretion, determined that the common law relationship between the applicant and his spouse was not genuine. It is up to the applicant to demonstrate that this finding was made in reviewable error.
Assessment of the relationship
[20] The applicant submits that the officer’s decision is not supported by the evidence. In determining that the relationship was not genuine, the officer ignored the fact that the applicant and his common-law spouse answered several questions regarding financial arrangements, their living arrangements and each other’s families consistently. The officer also failed to refer to documentary evidence before her which supports the common-law relationship such as the fact that the applicant declared himself to be in a common-law relationship on his 2004 income tax return. The officer cited the fact that applicant’s spouse declared herself single on her 2003 income tax return and therefore should have considered the applicant’s 2004 income tax return.
[21] The respondent submits that the officer properly considered the application. The officer interviewed the applicant and his spouse in order to assess their knowledge of each other and the genuineness of the relationship and noted several inconsistencies in their responses regarding their first meeting and introduction, their first date, their first sexual encounter, their engagement rings, lack of knowledge of each other’s family and educational background and their financial arrangements.
[22] The applicant’s disagreement with the officer’s interpretation of the facts does not, in my view, demonstrate a reviewable error. The applicant has not shown that the officer failed to consider either the evidence referred to in his affidavit or the circumstances surrounding the applicant’s relationship to his sponsor. A tribunal need not mention every piece of evidence in its reasons and is assumed to have weighed and considered all evidence before it, unless the contrary is shown: Hassan v. Canada (Minister of Employment and Immigration) (1992) 147 N.R. 317 (F.C.A.); Akram v. Canada (Minister of Citizenship and Immigration), 2004 FC 629 (at para. 15).
[23] The officer provides, at the very least, a tenable line of reasoning to support her conclusion: Law Society of New Brunswick, above. Based on the evidence before her, the officer has not made an unreasonable finding that the relationship between the parties was not genuine.
Sufficiency of the Officer’s Reasons
[24] The applicant submits that the officer’s reasons for her decision do not stand up to a somewhat probing examination: Naddaf v. Canada (Minister of Citizenship and Immigration), 2005 FC 824 (at para. 5).
[25] Counsel for the applicant fairly conceded that there were discrepancies in certain of the applicant’s and Ms. Beshir’s responses during their interviews. However, she submitted that the officer must go further than simply recording discrepancies. Mere statements such as “inconsistencies regarding the time they met” and “inconsistencies regarding the applicant’s salary” render the reasons insufficient. It cannot be determined whether there were in fact discrepancies or whether these were significant: Zhang v. Canada (MCI), [2002] I.A.D.D. No. 1349 (QL) (at para. 15).
[26] Reasons will be insufficient when they simply consist of a review of the facts and the statement of a conclusion, without any analysis to back it up. In essence, the applicant must be provided with enough information to know why his claim has been rejected. Adu v. Canada (Minister of Citizenship and Immigration), 2005 FC 565 (at para. 14).
[27] In this case, the officer’s reasons dealing with whether there are humanitarian and compassionate grounds to allow the applicant to remain in Canada are extensive. The officer clearly considered a number of factors including level of establishment, the hardship of separation between the applicant and his spouse, the health problems of the applicant (specifically an ulcer), and the applicant’s fear of returning to Ghana.
[28] When it came to the officer’s findings with regard to the applicant’s relationship with Ms. Beshir, the reasons are not as detailed although the officer took copious notes of the interviews. I am satisfied that the applicant was provided with sufficient information to know on what grounds his application was rejected. The officer’s reasons adequately referred to the evidence that she relied upon in arriving at her decision to demonstrate the path of her reasoning.
[29] I further find that the evidence before the officer reasonably supported her conclusion that the genuineness of the relationship had not been established, and conclude that the officer committed no reviewable error in the assessment of the humanitarian and compassionate factors presented by the applicant.
[30] No serious questions of general importance were proposed and none are certified.
IT IS THE JUDGMENT OF THIS COURT that the application is dismissed. No questions are certified.
“Richard G. Mosley”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-654-06
STYLE OF CAUSE: Sumaila Donkor v. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: September 11, 2006
APPEARANCES:
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Ms. Lori O’Reilly
Mr. Brad Hardstaff |
FOR THE APPLICANT
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SOLICITORS OF RECORD:
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O’Reilly Law Office Calgary, Alberta
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John H. Sims, Q.C. Deputy Attorney General Of Canada
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FOR THE RESPONDENT |