Date: 20140711

Docket: IMM-4665-13

Citation: 2014 FC 686

Ottawa, Ontario, July 11, 2014

PRESENT:    The Honourable Mr. Justice O'Keefe

BETWEEN:

LENA MUEMA

Applicant

And

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]               Lena Muema (the applicant) sought permanent residence in Canada as a member of the spouse or common-law partner in Canada class, but was denied. She now applies for judicial review of that decision pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act].

[2]               The applicant asks the Court to set aside the officer’s decision and return the matter to a different immigration officer for reassessment.

I.                   Background

[3]               The applicant is a citizen of Kenya who first arrived in Canada in December 1998 on a student visa. On October 4, 2003, she met Athanase Bena Bukase (the sponsor), a permanent resident. He soon became ill, but their relationship blossomed and they eventually married on June 25, 2004.

[4]               The applicant applied for permanent residence status in early December 2008. At some point in the process, immigration officials received an anonymous tip that the applicant and her husband had separated in the fall of 2008 and they were both interviewed on March 12, 2010. The immigration officer [the officer] was satisfied that they were in a genuine relationship and she granted stage 1 approval to the applicant on May 13, 2010.

[5]               However, before the final decision was made, the officer received another anonymous tip on September 5, 2012 that the relationship was not genuine. The source said that it was common knowledge in the Congolese community that the sponsor was actually engaged to a woman named Kaiyo Marah and had two children with her. The officer re-opened the investigation and Canada Border Services Agency [CBSA] officers visited the applicant’s home at about 7:00 a.m. on January 22, 2013.

[6]               The results of the home inspection were not positive. Only the applicant and her sister were home and the applicant told the officers that her husband had left for work at 6:00 a.m. She said that she did not know where he was working because he had a new job that he only started on January 16, 2013. She also did not know the number, but would call his cell phone if she needed to reach him.

[7]               The officers observed that there were a number of photos of the applicant’s family, but none of the sponsor’s family and only one photo of the applicant and her husband together. Further, there were no male toiletry products in the bathroom except for a single deodorant. The applicant explained this by saying that her husband was bald and otherwise used her products.

[8]               The officers also noted that most of the clothes in the closet belonged to the applicant, with only a few jeans and shirts belonging to her husband. One of the officers reported that the applicant said her husband kept his clothes in the car and only wore lounging clothes when he was home. The applicant also produced some letters that were addressed to her husband, two of which were unopened. When asked why she was not wearing a wedding ring, she told the officers that it was uncomfortable and that she lost it.

[9]               She also said that her husband drove a black Lincoln Navigator to work and that he normally parked it in their underground parking. However, he also had another car which he would move to the underground parking spot when he left for work. The officers asked to see the car in the parking space now and it was so caked with dust that it was impossible to see through the glass. The officers concluded that it could not be driven in that state and probably had not been moved in years. The licence plate showed it was registered to Felicien Mufuta, the sponsor’s brother.

[10]           The CBSA officers then visited another home to ask after Ms. Marah, the woman whom the anonymous source said was engaged to the sponsor. They encountered that woman’s sister, who said that Ms. Marah had left home to be with her fiancé, Pappi, which is one of the sponsor’s nicknames.

II.                Interview

[11]           The applicant was called in for another interview on March 6, 2013. The officer asked the applicant where she lived and mentioned that she had a different address listed with Capital City Housing and Alberta Health Services. The applicant explained that her husband had gotten another house briefly so that he could have more space when he had custody of his kids and that he might have changed it then, but that she kept her place because she worked downtown. In any case, she said it was only temporary and he soon gave it up.

[12]           The officer then asked about the children her husband had with Ms. Marah and the applicant disclosed that he had two, the latest born on October 5, 2009. The applicant said she did not learn about the second child until some time after she was born.

[13]           The officer then brought up the home visit from the CBSA. She asked why he did not have many clothes or toiletries there. The applicant answered that she did not show them all the clothes and that when she said that her husband kept his clothes in the car, she was referring only to his work clothes. She also said that she showed them her husband’s toothpaste and scrub, but that they use the same lotion and body wash. He had no shaving kit because he was bald and only used Veet to trim his beard. The officer also asked why there was only one picture of the two of them and she explained that pictures of her family were more important since she did not get to see them very often.

[14]           After that, the officer questioned the applicant about the vehicle situation and the applicant explained that her husband would rotate his cars among various parking spots to avoid time limits and not get towed. The car observed by the CBSA officers had broken down at the time, but she did not know that when they asked her about it. When the officer asked her later how a Lincoln Navigator could be a work truck for a welder, the applicant explained that he simply drove it to work and was given a truck by his employer for the day.

[15]           The officer then mentioned that the CBSA officer spoke to Ms. Marah’s sister and she told the applicant about the claim that he had taken off with her. The applicant denied that and said that Ms. Marah’s family had never liked her husband and had created a lot of problems for his family and their marriage.

[16]           The officer then explained that she had received information saying that the Congolese community knew that her husband and Ms. Marah were together. The applicant responded that her husband and Ms. Marah do see each other because of their children, which has been emotionally straining. Still, she says that she is more involved in the community than Ms. Marah is. When the officer mentioned that this was the second tip she had received, the applicant said that the first one was probably from her sister’s ex-husband, who had problems with them and had threatened to call immigration authorities.

[17]           Beyond that, the applicant emphasized that she and her husband were trying to build a life together; she was covered under his medical insurance and she signed for his car. She also said that Ms. Marah resented her.

III.             Decision

[18]           By letter dated June 20, 2013, the officer advised the applicant that she was denying the application. She explained that she was not satisfied that the applicant met the requirements of the spouse or common-law partner in Canada class in sections 4 and 124 of Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations].

[19]           Her reasons are more detailed in her report to file. After summarizing the process to date and the evidence, the officer noted that a requirement of membership in the class under subsection 124(a) of the Regulations is that the applicant be “the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada.” After reviewing the CBSA reports, the officer did not believe that the sponsor would have so few toiletries and clothes in the apartment after they had been living together for ten years and she thought the applicant’s explanations were weak. She concluded that the sponsor and the applicant were not cohabiting.

[20]           The officer then observed that paragraph 4(1)(b) of the Regulations requires that a marriage be genuine in order to consider the applicant a spouse. Here too, the officer was unsatisfied. Despite having been married for ten years, they were not cohabiting and the applicant was unable to name her husband’s employer. Further, her husband had two children with another woman, one of whom was born in 2009, which was five years after the applicant and her sponsor were married. As well, two separate individuals have informed her that the marriage was one of convenience.

[21]           The officer then recognized that the declarations from people saying that the applicant and her sponsor were married was evidence of genuineness, as was the fact that they bought a car together and were listed together on the sponsor’s health care plan. However, weighed against the contrary evidence, she was still not satisfied on the whole that the marriage was genuine.

[22]           The officer concluded by adding that the CBSA attended the residence of Ms. Marah’s family and were told by her sister that Ms. Marah was engaged to the sponsor. Although Ms. Marah herself supplied a declaration denying this, the officer said she placed more weight on the comments from her sister since she had no motive to lie.

IV.             Issues

[23]           The applicant submitted four issues for consideration:

•                     Did the officer breach the rules of natural justice or procedural fairness by refusing to disclose the source of the negative information or provide a copy of the negative information she had received from the secret informant?

•                     Did the officer err in closing her mind before even seeing what corroborative supporting evidence the applicant was to submit for her consideration after the March 6, 2013 interview?

•                     Was it unreasonable for the officer to characterize the secret informant’s information as very reliable when the officer herself admitted that she had not confirmed with anyone in the Congolese community on the truthfulness of this information?

•                     Did the officer misunderstand the evidence before her, err in failing to consider all evidence before her or failing to provide adequate reasons for rejecting the evidence before her?

[24]           I would rephrase the issues in the following way:

A.                What is the standard of review?

B.                 Was the decision procedurally unfair?

C.                 Was the decision unreasonable?

V.                Applicant’s Submissions

[25]           First, the applicant argues that it was procedurally unfair for the officer not to disclose the name of the informant who said her marriage was not genuine. By keeping that person’s identity secret, the applicant was deprived of any opportunity to attack his or her credibility. She supports this argument by citing Patel v Canada (Minister of Citizenship and Immigration), 2012 FC 1389, 422 FTR 61 [Patel].

[26]           Second, although the applicant was given 30 days to submit further statements from friends, family and the Congolese community, the officer said at the outset that she usually did not accord much weight to such statements because authors could write whatever they wanted. The applicant says that this shows that the officer closed her mind to these materials before she ever saw them. The applicant argues that the officer tried to hide that fact by discussing them briefly in her reasons, but it was not a balanced analysis and she never gave any compelling reasons for assigning them the low weight that she did. In her view, more was required (citing Rong v Canada (Minister of Citizenship and Immigration), 2013 FC 364, 16 Imm LR (4th) 327).

[27]           Third, the applicant complains that the officer was wrong to characterize the information from her secret sources as very reliable. One of the sources provided the information before the March 2010 interview and it was not at that time enough to prevent the applicant from receiving stage 1 approval. The applicant says the officer is contradicting herself by accepting it now. As for the second source, the one whose information provoked the reconsideration in March 2013, the officer admitted that she had not confirmed the truthfulness of the representations from any other members of the Congolese community. In the absence of that and in the face of a letter from the Congolese community confirming the genuineness of the marriage, the applicant said it was unreasonable to consider that information “very reliable.”

[28]           Fourth, the applicant claims that the officer misunderstood a lot of the evidence. In the interview, the applicant offered explanations for her statements that he kept his clothes in the car and she let the officers search where they wanted to search. She said there were some things, like his shoes, that the officers did not see because they did not ask to see them. The applicant says the officer misunderstood the applicant’s evidence in this regard.

[29]           Further, the applicant explained to the CBSA officers that she did not know where her husband worked because he had just started a new job and she supported that explanation with employment records. The officer did not give any reasons for rejecting that explanation.

[30]           Moreover, the applicant offered evidence of cohabitation such as the signed lease agreement, correspondence from the CRA and more. Although the officer acknowledged this evidence, the applicant says she did not give adequate reasons for rejecting it.

[31]           Finally, the applicant notes that Ms. Marah signed a statement explaining her relationship with the sponsor, denying that they were engaged and confirming that he was married to the applicant. She also explained her conflict with her family and that gave her sister a motive to provide false information to the CBSA officers. In light of that, the applicant says that the officer failed to adequately explain why she preferred the sister’s evidence to Ms. Marah’s.

VI.             Respondent’s Submissions

[32]           Most of the respondent’s original memorandum was devoted to arguing that the application was premature and that the applicant ought to have appealed to the Immigration Appeal Division before seeking judicial review. However, the applicant successfully challenged that argument in reply and the respondent withdrew it by a letter to the Court dated September 9, 2013.

[33]           Still, the respondent maintained that the decision should stand and it elaborated on this argument in its further memorandum of argument. The respondent argued that the issues were all questions of fact which should be evaluated subject to a reasonableness standard of review (see Grewal v Canada (Minister of Citizenship and Immigration), 2003 FC 960 at paragraph 5, [2003] FCJ No 1223 (QL) and Thach v Canada (Minister of Citizenship and Immigration), 2008 FC 658 at paragraph 15, [2008] FCJ No 834 (QL) [Thach]).

[34]           As well, the respondent says that the officer’s failure to reveal the source of the information did not make the decision unfair. Citing Haghighi v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 854 (QL), [2000] 4 FC 407, 189 DLR (4th) 268 (CA), the respondent said that the officer only needed to disclose the content of the tips and she did.

[35]           The respondent also argued against the applicant’s theory that the officer’s comments revealed a closed mind. Rather, the officer allowed the post-interview evidence and her comments simply pointed out that post-interview submissions necessarily respond to weaknesses already in evidence. The officer only meant that the reliability of evidence is assessed along with all relevant factors surrounding its submission, including timing. Further, the officer did not disregard the evidence, but considered and balanced it against the other evidence already collected. There was no error.

[36]           As for the comment that the tips were very reliable, the respondent says that all the tips did was prompt the re-investigation and lead to the home inspection and interview. The tips did not factor into the officer’s decision and the source of the tips was irrelevant.

[37]           As well, the respondent says that the applicant’s fourth argument disagrees with the officer’s findings. In the respondent’s view, the reasons explain why the decision was made. Citing Construction Labour Relations v Driver Iron Inc, 2012 SCC 65 at paragraphs 1 to 4, [2012] 3 SCR 405, the respondent says that the reasons should be read with an intention to understand them rather than to find imperfections.

[38]           Finally, the respondent argues that the reasons disclosed that all submitted evidence was considered and that the conclusions were reasonable. Further, the respondent points out that the officer made two findings: (1) the applicant and her sponsor were not cohabiting; and (2) the marriage was not genuine. Either would justify the result and so the applicant must show that both are unreasonable. In the respondent’s view, the applicant has not done so.

VII.          Analysis and Decision

A.                Issue 1 - What is the standard of review?

[39]           Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 SCR 190 [Dunsmuir]).

[40]           The first issue raised by the applicant challenges the decision’s procedural fairness. Such issues are reviewable on a correctness standard (see Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 43, [2009] 1 SCR 339 [Khosa]). Decision-makers must afford to affected persons the procedural rights to which they are entitled, though sometimes an error will not attract relief if it “is purely technical and occasions no substantial wrong or miscarriage of justice” (Khosa at paragraph 43).

[41]           The other issues raised by the applicant essentially challenge the officer’s conclusions regarding cohabitation and the genuineness of the marriage. Both are questions of pure fact, which usually attract the reasonableness standard (see Dunsmuir at paragraph 53). I see no reason to depart from that presumption here and that is consistent with the standard this Court has applied to such decisions in the past (see Thach at paragraph 15; Singh v Canada (Minister of Citizenship and Immigration), 2008 FC 673 at paragraph 8, 73 Imm LR (3d) 21).

[42]           This means that I should not intervene if the officer’s decision is transparent, justifiable, intelligible and within the range of acceptable outcomes (see Dunsmuir at paragraph 47 and Khosa at paragraph 59). Put another way, I will set aside the officer’s decision only if her reasons, read in the context of the record, fail to intelligibly explain why she reached her conclusions or how the facts and applicable law support the outcome (see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 SCR 708). As the Supreme Court held in Khosa at paragraphs 59 and 61, a court reviewing for reasonableness cannot substitute its own view of a preferable outcome, nor can it reweigh the evidence.

B.                 Issue 2 - Was the decision procedurally unfair?

[43]           The applicant’s first complaint is that the source of the negative information was not revealed, even though her counsel asked for that information at the interview. In Patel, an officer relied on a letter that accused a sponsor of arranging false marriages and charging money for those services. The officer did not reveal that letter, saying to the applicant in his interview only that they had received information that the marriage was not genuine. At paragraph 32, Mr. Justice François Lemieux allowed the application, saying that was unfair and that the letter should have been disclosed. A similar result was reached by Mr. Justice Sean Harrington in D’Souza v Canada (Minister of Citizenship and Immigration), 2008 FC 57 at paragraphs 14 and 15, 321 FTR 315 [D’Souza].

[44]           Here, however, there was no letter to disclose and the source was anonymous. All that the officer could do was disclose the information and invite a response and she did that. Further, in D’Souza, Mr. Justice Harrington noted at paragraph 14 that, even where the tip is in the form of a letter, it “is not absolutely mandatory that extrinsic evidence in this form be given to the applicant. In some instances, putting the allegations from the anonymous source to the applicant may be sufficient.” In my view, this is one of those instances where that was all that was required.

C.                 Issue 3 - Was the decision unreasonable?

(1)               The Statements and Declarations

[45]           The applicant said in her affidavit that although the officer gave her 30 days to submit statements and declarations from friends, family and her community, the officer cautioned that she usually did not give much weight to such evidence as people would write whatever they wanted. The applicant says that this shows the officer closed her mind to the evidence before it was ever received.

[46]           I disagree. As the respondent pointed out, she did not reject the evidence nor did she say she would assign it no weight. Rather, she only said that it usually is not compelling, which by necessary implication means that it sometimes is. While I do not read into her comment all the nuances that the respondent invites me to, it is a fact that some types of evidence are less reliable than others (for example, a government issued ID is better evidence of identity than a student ID). Telling an applicant that is not cause for setting aside the decision. Anyway, her statement is no more offensive than Mr. Justice Harrington’s caution in D’Souza, at paragraph 15, that “[p]oison pen letters are inherently unreliable.” Neither prejudges the actual evidence and neither precludes the possibility that evidence of that type could be compelling. It simply warns the person who seeks to rely on it that he or she should support it with other evidence as well.

[47]           In any event, the officer’s decision discloses that she found that the statements from friends, family, and the Congolese community supported the genuineness of the marriage, but did not outweigh the contrary evidence. In my view, it was open to her to assign less weight to the letters from those people than she did to evidence about the objective state of the apartment and the fact that Ms. Marah and the sponsor had a child together in 2009. Further, she specifically addressed the statement from Ms. Marah and explained that she gave it less weight than the statement of her sister because her sister had no motive to lie. I do not agree with the applicant that that was simply a token gesture.

(2)               The Anonymous Tips

[48]           The applicant also argued that the officer erred by characterizing her secret sources as very reliable. At least in general, I tend to agree. Anonymous tips are as dangerous as poison pen letters and are potentially more so since the applicant has no way to tell who made it. Also, I reject the respondent’s argument that the tips did not factor into the officer’s decision. When deciding whether the marriage was genuine, the officer specifically listed the fact that “[t]here has also been information received by two separate individuals that claim that PA and sponsor entered into a marriage of convenience.”

[49]           Still, I detect no error in the officer’s use of that evidence in this case. The tip sparked an investigation and it was soon corroborated by the CBSA’s visits to the homes of the applicant and Ms. Marah’s sister.

[50]           As well, I disagree with the applicant’s argument that the officer contradicted herself by believing the first tip since she had already rejected it after the first interview. The officer received new evidence since that interview, not the least of which was the fact that the sponsor had a child with Ms. Marah on October 5, 2009. That means the child was likely conceived within a few months of the date that the applicant first filed her application, which was in early December 2008. In the face of that evidence and the result of the CBSA’s home inspection, it was open to the officer to update her assessment of the first tip’s reliability.

[51]           Where there was so much evidence corroborating the information in the anonymous tips, I do not think the officer erred by attaching some weight to them. She was not required to seek out even more evidence from other members of the Congolese community, especially since the officer did not specifically place any reliance on that aspect of the tip. She investigated the claims that mattered and everything she found indicated that the anonymous tippers were telling the truth.

[52]           Besides, the officer’s conclusions that the applicant and her sponsor were not cohabiting was based solely on the results of the CBSA’s visit and not on the anonymous tips. Therefore, even if she had erred by attaching weight to the anonymous tips when considering the genuineness of the marriage, the respondent is right that the applicant would still need to show that the cohabitation decision was wrong.

(3)               Evidentiary Errors

[53]           That brings me to the applicant’s last argument: that the officer erred in her assessment of the evidence.

[54]           With regard to the clothes and toiletries, I agree with the respondent that the applicant’s arguments simply reiterate the explanations offered by the applicant at the interview and say that the officer erred by not accepting them. That is no error. The officer interviewed the applicant and found her explanations weak. I am in no position to reassess the officer’s credibility findings.

[55]           As for the employment argument, the officer said in her reasons that the applicant “was unable to name sponsor’s employer. It is reasonable to believe that in a genuine relationship you would know the name of the company where your spouse is working.” Truthfully, I think the applicant’s explanation that her sponsor had only started working there a few days earlier justified her inability to remember his employer and I would not have assigned that fact much weight. However, the officer disagreed and it is not my role to reweigh the evidence now. Further, I do not think that the officer’s failure to expressly refer to the applicant’s explanation means that she ignored it.

[56]           The applicant also argued that the officer did not adequately explain why she rejected the documents such as the lease agreement signed by the applicant, her sponsor and her sister, which supported cohabitation. In that regard, the officer did recognize that some of that documentation indicated a genuine marriage, but said that it was not enough to displace the other evidence, such as the fact that the apartment itself showed few signs of cohabitation or the fact that the sponsor and Ms. Marah had a child together in 2009. In other words, she decided that the state of the apartment was better evidence than documents saying that the applicant and her sponsor bought a car together. That was reasonable.

[57]           Also, with respect to the residential tenancy agreement, I note that it was signed on July 15, 2007, and the original tip said that the applicant and her husband only separated in the fall of 2008. It does not contradict the officer’s conclusions that the applicant and her sponsor were not presently cohabiting.

[58]           Finally, the applicant complains that the officer did not adequately explain why she rejected Ms. Marah’s statement in light of the evident conflict between Ms. Marah and her family. I see no merit to that. The officer specifically considered the conflict, but decided that Ms. Marah had motive to lie and her sister did not. I do not see what further explanation was required. Anyway, even if Ms. Marah’s family disliked the sponsor, that does not explain why they would want his wife deported. Indeed, if the marriage was genuine, I would think they would approve of the applicant’s presence in Canada since she keeps her husband from reuniting with Ms. Marah.

[59]           It is true that there is evidence that the applicant and her sponsor were cohabiting and in a genuine relationship, but there was also evidence that they were not. The record could have supported either outcome, but ultimately it was this officer who was tasked with sorting out the evidence and I understand why she made the decision that she did. It was reasonable.

[60]           Since the procedure followed was also fair, I therefore dismiss this application for judicial review.

[61]           Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

JUDGMENT

THIS COURT’S JUDGMENT is that the application for judicial review is dismissed.

"John A. O'Keefe"

ANNEX

Relevant Statutes

Immigration and Refugee Protection Act, SC 2001, c 27

Relevant Regulations

Immigration and Refugee Protection Regulations, SOR/2002-227

 

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:	IMM-4665-13
STYLE OF CAUSE:	LENA MUEMA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:	Edmonton, Alberta
DATE OF HEARING:	JANUARY 13, 2014
REASONS FOR JUDGMENT AND JUDGMENT:	O'KEEFE J.
DATED:	july 11, 2014

APPEARANCES:

Simon K. Yu	For The Applicant
Rick Garvin	For The Respondent

SOLICITORS OF RECORD:

Simon K. Yu Barrister and Solicitor Edmonton, Alberta	For The Applicant
William F. Pentney Deputy Attorney General of Canada Edmonton, Alberta	For The Respondent