In terms of policy, other than the refusal of the application, the problem is that there are few, if any, consequences for those who present highly questionable or suspicious sponsorship applications. Perhaps this should be a consideration for future legislative amendments.
Gilani v. Canada (Minister of Citizenship and
Immigration)
Between
Syed Waqas Ali Gilani, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Syed Waqas Ali Gilani, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 240
2013 FC 243
Docket IMM-2969-12
Federal Court
Toronto, Ontario
Kane J.
Heard: January 22, 2013.
Judgment: March 7, 2013.
Docket IMM-2969-12
Federal Court
Toronto, Ontario
Kane J.
Heard: January 22, 2013.
Judgment: March 7, 2013.
(50 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 KANE J.:-- The applicant, Mr Syed Waqas Ali
Gilani, seeks judicial review pursuant to section 72 of the Immigration and Refugee Protection Act SC
2001, c 27 [IRPA] of a decision
made by an Immigration Officer [the Officer] at the Canada Immigration Centre,
Etobicoke, Ontario, dated March 16, 2012, refusing his claim for permanent
residence as a member of the Spouse or Common-law partner in Canada class,
because he had not satisfied Regulation 124(a) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [IRPR] which requires an applicant to
demonstrate that the applicant is the spouse of a sponsor and that the
applicant cohabits with the sponsor in Canada.
2 For
the reasons that follow the application is dismissed.
Background
3 Mr
Gilani is a citizen of Pakistan who arrived in Canada in 2003. He married his
sponsor, Rossana De Santis, a permanent resident of Canada, on May 24, 2006. In
January, 2008, Mr Gilani's application for permanent residence was approved in
principle.
4 Later
in 2008, Citizenship and Immigration Canada [CIC] received a tip, referred to
as a "poison pen letter" which claimed that the applicant's marriage
was one of convenience, and that the applicant was paying his sponsor as a part
of the agreement. In 2011, the Canadian Border Services Agency [CBSA] conducted
an investigation, either in response to the tip or as part of a broader probe,
which led to the applicant's arrest in October, 2011.
5 As
a result of surveillance, CBSA found that the applicant was not residing with
his spouse and sponsor, but rather with his sister and brother-in-law. CBSA
also found that his cell phone bill was sent to his sister's address and his
car was parked at this address and never at his sponsor's home address. CBSA
also noted that his spouse and sponsor, a recipient of an Ontario Disability
Support Pension [ODSP], had not advised ODSP that she was married, and still
indicated her status as "single".
6 Following
the applicant's release from detention following his arrest, he returned to his
sponsor's residence. CIC sent a procedural fairness letter on October 12, 2011
setting out the allegations that the applicant was not cohabiting with his
sponsor. The applicant provided submissions in reply and statutory declarations
from relatives and friends who attested that the applicant and sponsor were
married but had been apart for a period of time in 2011.
7 The
applicant and sponsor were interviewed by the Officer on March 15, 2012.
The Decision under Review
8 The
Officer determined that the applicant had satisfied the eligibility
requirements to apply for permanent resident status in the spouse and
common-law partner in Canada class, but failed to demonstrate that he
"cohabits with (his) sponsor in Canada" as required by Regulation
124(a) of the IRPR.
9 The
Officer considered the evidence from CBSA and the applicant's submissions in
response to the procedural fairness letter which explained that he spent some
nights at his sister's home to help with her young family and because of its
proximity to his work and also because he and his sponsor had some conflicts
following her miscarriage in November 2010 which led him to leave in January,
2011, but that the time apart was not intended as a separation.
10 The
Officer referred to the statutory declarations from friends and family in
support of the applicant's assertion that he and his sponsor were married and
that their time apart was temporary and due to the miscarriage and other
reasons, including the proximity of his sister's home to his work and his
assistance to his sister and her young children, but attributed little weight
to these declarations because they came from relatives and friends closely tied
to the applicant and were self-serving.
11 The
Officer considered the explanations and information provided at the March 15,
2011 interview with the applicant and his sponsor, and found that the applicant
lacked basic information about the sponsor's pregnancy and miscarriage, and
that his answers were not consistent with his sponsor's answers. With respect
to the cell phone bill, the Officer concluded that it was more likely that it
was sent to his sister and brother-in-law's address because the applicant lived
there, rather than because the applicant's brother-in-law was paying the bill.
With respect to the sponsor's status as single for the purpose of her ODSP
benefits, the Officer found that while the sponsor indicated that this was a
mistake which she had taken steps to clarify, there was no evidence that she
had done so.
12 The
Officer also noted that the applicant had few answers or explanations at the
time of his arrest and his answers and explanations at the time of the
interview were likely made up and the result of having time to prepare.
13 The
Officer clearly stated that he gave no weight to the "poison pen
letter", but relied on the results of the CBSA investigation and the
submissions of the applicant in response, including the interview.
14 The
Officer acknowledged that the applicant and his sponsor appeared to have
resided together after his release from detention in October, 2011 and that a
couple need not spend every night together in the same home. However, the
Officer concluded that it appeared that the applicant and his sponsor were not
cohabiting from January, 2011, or earlier, until the time of his arrest.
The Issues
15 The
applicant submits that the decision should be quashed on four grounds. First,
the Officer unreasonably gave low probative weight to relevant and corroborative
evidence, namely the statutory declarations of family and friends. Second, the
Officer made unreasonable findings of fact with respect to the couple's
cohabitation, the pregnancy and the CBSA investigation. Third, the Officer made
veiled findings about the genuineness of the marriage and conflated
cohabitation with genuineness. Fourth, the Officer breached principles of
procedural fairness by not disclosing the details of the poison pen letter.
16 The
respondent submits that the Officer's decision was reasonable based on his
assessment of all the evidence and that the applicant is, in essence, asking
the court to reweigh evidence, which is not the role of the Court.
Standard of review
17 The
parties agree that in accordance with Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 SCR 190, there are only
two standards of review: correctness for questions of law and reasonableness
involving questions of mixed fact and law. A finding of cohabitation is a
factual determination and reviewed against a standard of reasonableness: Said v Canada (Minister
of Citizenship and Immigration), 2011 FC 1245 [Said] at para 18.
18 The
relevant provision of the Regulations governing the spouse of common-law
partner class is the following:
A foreign national is a
member of the spouse or common-law partner in Canada class if they
· (a) are the spouse
or common-law partner of a sponsor and cohabit with that sponsor in
Canada;
· (b) have temporary
resident status in Canada; and
· (c) are the subject
of a sponsorship application.
* * *
Fait partie de la
catégorie des époux ou conjoints de fait au Canada l'étranger qui remplit les
conditions suivantes :
· a) il est l'époux ou le conjoint de fait
d'un répondant et vit avec ce répondant au Canada;
· b) il détient le statut de résident
temporaire au Canada;
· c) une demande de parrainage a été déposée à
son égard.
Did the Officer breach principles of procedural
fairness by not disclosing the poison pen letter?
19 The
Officer clearly stated that he gave the "poison pen letter" no
weight. The Officer relied on the CBSA investigation, the results of which were
disclosed to the applicant in the procedural fairness letter sent in October,
2011. In addition, the contents of the poison pen letter, even though no weight
was given to it, were disclosed to the applicant and his sponsor at the
interview and they had an opportunity to respond. As noted by Justice Mosley in
Wang v Canada, 2011 FC 812 at
paragraph 13, a "poison pen letter" need not be disclosed if the
allegations are made known to the applicant.
· [13] Moreover, the applicant's contention that there was a breach of
procedural fairness because the letter or its particulars were not disclosed to
the applicant or her husband is without merit. It has been held that a
"poison pen letter" does not necessarily have to be disclosed to an
applicant so long as the applicant is made aware of the allegations contained
therein: D'Souza v. Canada (Minister of Citizenship and
Immigration), 2008 FC 57, 321 F.T.R. 315 at para. 14.
This is what occurred here. During the applicant's husband's interview, the
visa officer explicitly indicated that they had received an anonymous letter
and gave him the opportunity to respond to the visa officer's concerns: Visa
Officer's Decision, Applicant's Record, pgs. 50-52. No breaches of natural
justice can said to have been committed.
20 Similarly,
in this case there was no breach of procedural fairness.
Did the Officer make veiled findings regarding the
genuineness of the marriage?
21 The
applicant submits that the Officer conflated the requirements that a marriage
be genuine with the cohabitation requirement and made veiled findings about the
genuineness of the marriage. I do not agree. While the Officer referred to the
CBSA report as suggesting that the "couple is not cohabiting in a genuine
marital relationship", it is clear from the CBSA investigation and from
the Officer's decision as a whole that he was focused on the cohabitation
requirement. In addition, it is well settled that failure to meet any of the
requirements of Regulation 124 is fatal. If there is no cohabitation with the
spouse and sponsor, the applicant is not eligible.
22 As
noted by Justice Russell in Said at para 34:
· 34 ..... If there was no cohabitation then sponsorship was not
possible. There was no reason to consider whether the marriage "was not
genuine and was entered into primarily for the purpose of acquiring any status
or privilege under the Act" as set out in section 4 of the Regulations.
The issue for the Officer was not about why the marriage was entered into, but
whether the Applicant and his Sponsor were cohabitating at the time of the application.
I see no reasonable error on this point.
· [35] ..... Further, Justice Shore held in Laabou, above, at paragraph 27, that the failure to meet any of the
conditions in subsection 124(a) of the Regulations is fatal to the claim.
Whether or not their marriage was genuine, the fact remains - as reasonably
found by the Officer - that the Applicant and his Sponsor are not cohabiting.
This is sufficient to exclude him from the Spouse in Canada class.
23 In
Mandbodh v Canada (Minister of Citizenship and
Immigration), [2010] FCJ 216, 2010 FC 190, Justice
Boivin referred to the criteria in Regulation 124 and noted, at para 11:
· [11] Failure to meet one of the above-mentioned conditions is fatal
to the applicant's application for permanent residence. Essentially, the
applicant is asking this Court to consider the concerns raised by the officer
and the explanations provided by the applicant in reply and to reweigh those
explanations and arrive at a different conclusion, which is not the role of
this Court.
Did the Officer reject corroborating evidence?
24 The
applicant submits that the Officer erred in rejecting the corroborating
evidence which supported the applicant's claim that he and his sponsor had been
married for six years and, although they had been apart for almost a year, this
was not a permanent separation and was due to the conflict following the
miscarriage. The applicant submits that the Officer erred in giving the
statutory declarations of family low probative weight because they were self
serving and from persons with close ties to the applicant, and that the Officer
failed to consider the declarations from the friends. The applicant, relying on
Ugalde v Canada (Minister of Public Safety and
Emergency Preparedness), [2011] FCJ 647 [Ugalde], argues that evidence can not be rejected only because it is self
serving. The applicant notes that those who submitted the declarations are the
best placed to describe the relationship and the reasons for the applicant's
time away from his sponsor.
25 The
respondent submits that the Officer was entitled to attribute low weight to the
statutory declarations and that he did not do so solely on the basis that the
declarations came from family and friends with close ties. The respondent
submits that the Officer analysed the contents of the declarations, referred to
this information in his decision, and weighed all this information against the
evidence provided in the CBSA investigation.
26 As
noted by Justice de Montigny in Ugalde:
· [26] However, jurisprudence has established that, depending on the circumstances, evidence should not be disregarded simply because it emanates from
individuals connected to the persons concerned: R v Laboucan, 2010 SCC 12, at para 11. As
counsel for the Respondent rightly notes, Laboucan concerned a criminal matter; however, immigration jurisprudence
from this Court has established the same principle. Indeed, several immigration
cases hold that giving evidence little weight because it comes from a friend or
relative is an error.
· [27] For example, in Kaburia v Canada
(Minister of Citizenship and Immigration), 2002 FCT
516, Justice Dawson held at paragraph 25 that, "solicitation does not per
se invalidate the contents of the letter, nor does the fact that the letter was
written by a relative." Likewise, Justice Phelan noted the following in Shafi v Canada (Minister of Citizenship and Immigration), 2005 FC 714, at para 27:
· The Officer gives little weight to other witnesses' affidavit
evidence because it comes from a close family friend and a cousin. The Officer
fails to explain from whom such evidence should come other than friends and
family.
· Similarly, Justice Mactavish stated the following in Ahmed v Canada (Minister of Citizenship and Immigration), 2004 FC 226, at para 31:
· With respect to [sic]
letter from the President of the organization, I do not understand the Board's
criticism of the letter as being "self-serving", as it is likely that
any evidence submitted by an applicant will be beneficial to his or her case,
and could thus be characterized as 'self-serving'.
· [28] In light of this jurisprudence, and under the circumstances, I
do not believe it was reasonable for the Officer to award this evidence low
probative value simply because it came from the Applicants' family members.
Presumably, the Officer would have preferred letters written by individuals who
had no ties to the Applicants and who were not invested in the Applicants'
well-being. However, it is not reasonable to expect that anyone unconnected to
the Applicants would have been able to furnish this kind of evidence regarding
what had happened to the Applicants in Mexico. The Applicants' family members
were the individuals who observed their alleged persecution, so these family
members are the people best-positioned to give evidence relating to those
events. In addition, since the family members were themselves targeted after the
Applicants' departure, it is appropriate that they offer first-hand
descriptions of the events that they experienced. Therefore,
it was unreasonable of the Officer to distrust this evidence simply because it
came from individuals connected to the Applicants.
· (emphasis added)
27 Other
cases have looked at the particular circumstances and reiterated that evidence
should not be discounted solely
because it is self serving. An additional passage in Ahmed, is relevant, where Justice Mactavish applied that principle:
· [32] That said, although there are problems with the Board's
findings regarding the evidentiary value of the letter in assessing the nature
of Mr. Ahmed's involvement with the Anjuman Hussainia, these findings were not
patently unreasonable. The Board noted that the letter was written long after
the alleged incidents took place, and made no reference to any of Mr. Ahmed's
accomplishments or specific responsibilities within the Anjuman organization.
Further, the Board's negative credibility finding regarding Mr. Ahmed's
problems with the SSP did not hinge solely on this letter. The Board questioned
several aspects of his claim, including the very existence of a tailor shop,
and the extent of Mr. Ahmed's involvement in the rally. In these circumstances,
it was not patently unreasonable for the Board to view this letter as being of
little probative value.
28 Similarly
in Ray v Canada (Minister of Citizenship and Immigration), [2006] FCJ 927, at para 39, Justice Teitelbaum stated that while
it is an error to attribute little probative value on the basis that the
documents are self serving, other basis may support the low probative value
attributed.
29 The
two issues raised by the applicant with respect to the declarations are
related: whether the Officer assigned low probative value only because of the
source of the declarations or for other reasons after an analysis of their
contents; and, whether the Officer was required to specifically mention each
one.
30 The
Officer referred to the statutory declarations from family and friends and he
indicated that he gave "these documents" little weight. There is
nothing on the record to suggest that the Officer ignored some of the declarations.
31 The
applicant submits that although the Officer says he considered all the
evidence, he ignored the supporting declarations from friends. The applicant
relies on Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), 157 FTR 35, [1998] FCJ
1425, where Justice Evans noted at para 17 that "Thus, a blanket statement
that the agency has considered all the evidence will not suffice when the
evidence omitted from any discussion in the reasons appears squarely to
contradict the agency's finding of fact. Moreover, when the agency refers in
some detail to evidence supporting its finding, but is silent on evidence
pointing to the opposite conclusion, it may be easier to infer that the agency
overlooked the contradictory evidence when making its finding of fact."
32 I
would also note the words of Justice Near in Karayel v
Canada (Minister of Citizenship and Immigration), 2010
FC 1136, with respect to the applicability of this principle:
· [16] The Applicant relies on Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration)
(1998), 157 FTR 35, 83 ACWS (3d) 264, for the proposition that the Board
committed a reviewable error by not at least acknowledging evidence that
contradicted its finding regarding the Applicant's credibility. Cepeda is a
seminal case often cited on judicial review when the Board has come to a
conclusion that differs from information contained in a piece of evidence
submitted by the Applicant. In this particular context it is important to remember
that the general principle to be distilled from Cepeda's evolution into an
all-purpose documentary evidence citation is that the more probative the
evidence, the more likely the Court will find error when the Board ignores it (Ozdemir v Canada (Minister of Citizenship and Immigration), 2001 FCA 331, 282 NR 394 at para 9).
33 In
this case, the Officer did not make any blanket statements about the statutory
declarations. The Officer referred to the declarations from family and friends
both generally and specifically. The Officer referred to the statutory
declarations of the family members in consideration of the applicant's
explanation for spending nights at his sister's home and the Officer referred
to the brother-in-law's declaration regarding the address on the cell phone
bill and to the sponsor's declaration regarding her single status for the
purpose of the ODSP benefits.
34 While
the Officer did not specifically refer to each of the statutory declarations
from friends, he referred to his consideration of all the evidence before him.
It must be recalled that the declarations were similar in content and the fact
that the applicant and his sponsor had not been together since at least
January, 2011 was not in dispute.
35 The
Officer acknowledged that the declarations sought to provide explanations for
the applicant's time away from his sponsor, but based on the assessment of all
the evidence, both in support and against, he gave the declarations low weight.
As the respondent submits, the Officer was entitled to weigh all the evidence
supporting the applicant with all the evidence provided by the CBSA
investigation and the interviews and attribute low weight to the statutory
declarations. The Court can not engage in a reweighing of the evidence.
36 I
do not agree that the Officer overlooked or ignored any of the declarations or
that he assigned low probative value only because the declarations were
provided by his sister and brother-in-law and by neighbors.
37 In Kornas v Canada (Minister of Citizenship and Immigration),
2010 FC 517, Justice O'Reilly considered the reasonableness of an Officer's
decision that found the applicant and his spousal sponsor were not cohabiting
and found that while there was evidence supporting the claim that the couple
lived together, there was also contrary evidence. The Officer's decision which
canvassed all the evidence was not unreasonable as it fell within the range of
acceptable outcomes, based on the facts and the law.
Did the Officer make unreasonable findings of
fact?
38 The
applicant submits that the Officer erred in making unreasonable findings of
fact on three significant issues; the couple's cohabitation; the pregnancy;
and, the results of the CBSA investigation.
Cohabitation
39 First
the applicant argues that the Officer failed to consider the applicable
Operations Manual, OP 2, which provides guidance to officers about the meaning
of cohabitation and which notes that while cohabitation means living together
continuously, some separations which are temporary and short are contemplated.
The applicant submits that although he was staying at his sister's home after
the miscarriage, he also spent time with his sponsor and her children and, as
noted in their statutory declarations, their separation was temporary. The
applicant further submits that the Officer failed to consider that the couple
have lived together continuously since his release from detention following his
arrest in October, 2011.
40 The
respondent agrees that OP 2 contemplates exceptions to cohabitation such as
absences due to work or illness of a short and temporary nature, but not due to
relationship problems. The Officer based his findings with respect to
cohabitation on all the evidence. Given that the Officer found that the sponsor
had not been pregnant and had not had a miscarriage, the explanation cited for
the separation was not accepted. Moreover, a period apart of over 10 months is
not a short period and it was not assessed by the Officer to be temporary.
41 The
respondent also submits that the FOSS notes, which were considered by the
Officer and form part of the reasons for the decision, include information
which reasonably led to the finding that the couple were not cohabiting, all of
which was set out in the procedural fairness letter.
42 The
Officer reasonably concluded that the applicant was not cohabiting with his
sponsor. At his interview, the applicant indicated that he was "gone"
after January, 2011. His explanations for why he resided with his sister and
brother-in-law were not accepted as credible given the evasive answers he
provided at the time of the arrest and the inconsistency in his responses at
the interview with those of his sponsor. The Officer did not accept that the
sponsor had been pregnant and, therefore, the explanation for the time apart
had no foundation and no other credible reason was offered. The sponsor had not
taken steps to advise ODSP that she was married and ODSP records confirmed that
she remained listed as single. The applicant had admitted at his interview
following his arrest that he had said that he did not support her so that she
could continue to be eligible for the ODSP benefits.
The pregnancy
43 The
applicant submits that there was no evidentiary basis for the Officer to doubt
that the sponsor had been pregnant and had a miscarriage. The applicant submits
that the hospital emergency visit due to abdominal pain supports the sponsor's
condition. In addition, both the applicant and the sponsor responded to the
Officer's questions about the pregnancy at the interview.
44 The
respondent submits that there was no medical evidence to corroborate the
assertion that the sponsor was pregnant and had miscarried. The hospital record
merely recounted that the sponsor had said she had a positive pregnancy test,
followed by a negative test. The purpose of the hospital visit was not due to
the miscarriage. In addition, the applicant and respondent provided
inconsistent answers at the interview with respect to their intention to have
children.
45 The
Officer's finding that the sponsor had not been pregnant is not unreasonable.
Although the Officer does not specifically refer to the lack of reliable
medical evidence that one would expect could be provided to establish that the
sponsor had been pregnant or had miscarried, the Officer noted that he was not
satisfied based on "the documentation provided". In addition, the
sponsor and the applicant had very different responses regarding how long they
had been attempting to conceive.
Over reliance on the CBSA investigation
46 The
applicant submits that the Officer placed too much reliance on the CBSA
investigation but did not provide any details or dates of surveillance to the
applicant.
47 As
noted by the respondent, all the allegations arising from the CBSA
investigation were set out in the procedural fairness letter and the applicant
provided submissions in response, therefore, there was no breach of procedural
fairness.
48 With
respect to the applicant's submission that the officer overly relied on the
CBSA investigation, it is not the role of the Court to reweigh the evidence.
The CBSA letter and the FOSS notes were considered by the Officer and the
Officer was entitled to place more probative value on this evidence than on the
evidence provided by the applicant.
Conclusion
49 The
Officer's decision that the applicant failed to demonstrate that he
"cohabits with (his) sponsor in Canada" as required by Regulation
124(a) of the IRPR was
reasonable. While there was some conflicting evidence, the officer justified
his conclusions, which were noted in the reasons, and were based on his
assessment of all the evidence.
50 The
judicial review is dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that:
The application is
dismissed.
There is no question
for certification.
KANE J.
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