DISCREPANCY OVER TRAVEL RESULTS IN CITIZENSHIP DECISION OVERTURNED

The Federal Court reversed a decision of a Citizenship Judge who had granted citizenship to an applicant who omitted a number of travel dates from her application. The court held that he explanation by the applicant of "mistakes" was beyond the plausible and therefore the exercise of discretion by the judge was not warranted and crossed the line of what is reasonable.

Canada (Minister of Citizenship and Immigration) v. Pereira

Between
The Minister of Citizenship and Immigration, Applicant, and
Ilda Rosa Moniz Pereira, Respondent

[2014] F.C.J. No. 604

2014 FC 574

Docket: T-1893-13

 Federal Court
Toronto, Ontario

LeBlanc J.

Heard: June 3, 2014.
Judgment: June 17, 2014.

(34 paras.)

---

JUDGMENT AND REASONS

1     LEBLANC J.:-- This is an appeal under subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 (the Act) and section 21 of the Federal Courts Act, RSC 1985, c F-7, of a decision of a citizenship judge dated September 25, 2013, granting the respondent's citizenship application under paragraph 5(1) of the Act.

2     For the reasons that follow, the appeal is granted.

I. Background

3     The respondent was born in Portugal in 1984. She immigrated to Canada with her parents when she was six years old. She holds the status of permanent resident since then. On September 9, 2009, she applied for Canadian citizenship. She then reported having been physically present in Canada for the whole four year period immediately preceding the filing of the application (the Reference Period), except for a total of 28 days where she stated having been outside Canada for two business trips and two vacation trips.

4     In the course of the processing of her citizenship application by citizenship authorities, the respondent was required to provide a Residence Questionnaire, which she did in May of 2012. In that questionnaire, she listed the four trips she had reported on her citizenship application but without being able, this time, to provide the dates of those trips abroad. She also listed her employment and education history from June 2005 and her various places of residence in Canada from 1991.

5     In the course of the same process, the respondent was asked to produce an Integrated Customs Enforcement System report (ICES), a document issued by the Canada Border Services Agency, tracking her departures from and arrivals to Canada, as well as her Ontario Health Insurance Plan (OHIP) personal claim history. Her OHIP history showed 13 claims over the four year Reference period.

6     However, her ICES report showed six entries that were not declared on either her citizenship application or Residence Questionnaire. The respondent was also requested, but was enabled, to produce her passport for the Reference Period. In a letter to the citizenship authorities dated June 5, 2012, she explained that when she renewed her expired passport in 2009, the staff of the Portuguese consulate in Toronto, where she made that request, retained that passport and subsequently destroyed it.

7     On September 25, 2103, the respondent attended a hearing before the citizenship judge and on that same day, her citizenship application was approved by the judge.

8     In a fairly short decision, the citizenship judge first noted that the respondent had declared 1432 days of physical presence in Canada during the Reference Period but that there was no passport available to verify that assertion, as her old passport had been repossessed by the Portuguese consular authorities when she applied for a new one.

9     He also noted that the respondent's ICES report showed more entry stamps than those she had reported to the citizenship authorities and that her justification for those "mistakes" was that 'she didn't have a passport available and her memory, of course, failed her'. On this particular issue, the citizenship judge noted the respondent's statement that it was 'entirely possible that she made a few more trips, all business related and very short, outside Canada'.

10     Finally, the judge wrote that the respondent had a full-time job, was married, had been educated and had all her social activities in Canada.

11     The citizenship judge then approved the respondent's citizenship application in the following terms:

·       "Considering all of the above, and based on my careful assessment of the applicant's testimony, as well as my consideration of the information and evidence before me, I am satisfied that the applicant is actually living and has been physically present in Canada on the number of days sufficient to comply with the Citizenship Act. 

·       For all of the above I approve the application for citizenship of MS. PEREIRA." 

II. The Act's Residency requirement

12     Paragraph 5(1)(c) of the Act, which provides for the residency requirement citizenship applicants need to meet in order to be successful, reads as follows:

·       5. (1) 

The Minister shall grant citizenship to any 

·       person who 

  

(a) makes application for citizenship;

(b) is eighteen years of age or over;

·       (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: 

·       (i) 

for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and 

·       (ii) 

for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; 

...

* * *

·       5. (1) Le ministre attribue la citoyenneté à toute personne qui, à la fois: 

·       a) 

en fait la demande; 

·       b) 

est âgée d'au moins dix-huit ans; 

·       c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante: 

·       (i) 

un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, 

·       (ii) 

un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; 

[...]

13     For quite some time, there has been an ongoing debate within this Court as to what paragraph 5(1)(c) of the Act exactly means. Competing jurisprudential schools have emerged from that debate with the result that three different tests are available to citizenship judges in assessing the residency requirement in any given case (Sinanan v Canada (Minister of Citizenship and Immigration) 2011 FC 1347 at paras 6 to 8, [2011] F.C.J. No. 1646 (QL); Huang v Canada (Minister of Citizenship and Immigration) 2013 FC 576 at paras 17 and 18, [2013] F.C.J. No. 629 (QL)).

14     The first test involves strict counting of days of physical presence in Canada which must total 1095 days in the four years preceding the application. It is often referred to as the quantitative test or the Pourghasemi test (Pourghasemi (Re) (FCTD) [1993] 62 FTR 122). The second is a less stringent test which recognizes that a person can be resident in Canada, even while temporarily absent, if there remains a strong attachment to Canada. This test is generally known as the Re Papadogiorgakis test (Re Papadogiorgakis, [1978] 2 FC 208 (QL), 88 DLR (3d) 243 (TD)). Finally, the third test builds on the second one by defining residence as the place where one has centralized his or her mode of living. It is described in the jurisprudence as the Koo test (Re Koo (1992), [1993] 1 FC 286 (QL), [1992] F.C.J. No. 1107 (TD); see also Paez v Canada (Minister of Citizenship and Immigration) 2008 FC 204 at para 13, [2008] F.C.J. No. 292 (QL); Sinanan, above at paras 6 to 8; Huang, above at paras 37 to 40). The last two tests are often referred to as qualitative tests (Huang, above at para 17).

15     The dominant view in this Court's jurisprudence is that citizenship judges are entitled to choose which test they desire to use among these three tests and that they cannot be faulted for choosing one over the other (Pourzand v Canada (Minister of Citizenship and Immigration)2008 FC 395 at para 16, [2008] F.C.J. No. 485 (QL); Xu v Canada (Minister of Citizenship and Immigration) 2005 FC 700 at paras 15 and 16, [2005] F.C.J. No. 868 (QL); Rizvi v Canada (Minister of Citizenship and Immigration) 2005 FC 1641 at para 12, [2005] F.C.J. No. 2029 (QL)).

16     They can be faulted however if they fail to articulate which residency test was applied in a given case (Dina v Canada (Minister of Citizenship and Immigration) 2013 FC 712 at para 8, [2013] F.C.J. No. 758 (QL)).

III. Issue and Standard of Review

17     The Minister of Citizenship and Immigration (the applicant) claims that the citizenship judge's decision approving the respondent's citizenship application is unreasonable in three ways. First, he says that the citizenship judge failed to identify the legal test he used to assess whether the respondent met the Act's residency requirement. Secondly, he contends that the judge's reasons and analysis are wholly inadequate in that they do not sufficiently explain on what grounds the respondent's citizenship application was approved. Finally, he argues that it was unreasonable for the citizenship judge to approve the respondent's application for citizenship given the paucity of, and the inconsistencies in, her evidence on the residency requirement.

18     Both the applicant and the respondent submit that the standard of review applicable to these issues is that of reasonableness. The Court agrees. It is indeed generally accepted in this Court's jurisprudence that a citizenship judge's consideration of the residency requirement under paragraph 5(1)(c) of the Act, whichever the test used by the judge, is a matter of mixed facts and law and is thus reviewable on a standard of reasonableness (Saad v Canada (Minister of Citizenship and Immigration), 2013 FC 570 at para 18, [2013] F.C.J. No. 590 (QL); Canada (Minister of Citizenship and Immigration) v Rahman, 2013 FC 1274 at para 13, [2013] F.C.J. No. 1394 (QL); Balta v Canada (Minister of Citizenship and Immigration), 2011 FC 1509 at para 5, [2011] F.C.J. No. 1830 (QL); Canada (Minister of Citizenship and Immigration) v Baron, 2011 FC 480 at para 9, [2011] F.C.J. No. 735 (QL); Canada (Minister of Citizenship and Immigration) v Diallo, 2012 FC 1537 at para 13, [2012] F.C.J. No. 1615 (QL); Huang, above at paras 24 to 26).

19     This means, as is well known, that the Court's review analysis is concerned with the existence of justification, transparency and intelligibility within the decision-making process and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law (Dunsmuir v New Brunswick,2008 SCC 9 at para 47, [2008] 1 SCR 190).

IV. Analysis

20     This case can be entirely resolved on the applicant's third ground of appeal. Indeed, even assuming that the citizenship judge clearly identified the residency test he applied to the facts of this case, which I believe he did in any event, and irrespective of the quality of his reasons for the decision, the respondent, in my view, failed to establish, with sufficient and credible evidence, that she met the Act's residency requirement. The citizenship judge's conclusion to the contrary was, in the circumstances of this case, an unreasonable outcome.

21     As it has been affirmed on many occasions by this Court, Canadian citizenship is a privilege that ought not to be granted lightly and the onus is on citizenship applicants to establish, on a standard of balance of probabilities, through sufficient, consistent and credible evidence, that they meet the various statutory requirements in order to be granted that privilege (Canada (Minister of Citizenship and Immigration) v Elzubair, 2010 FC 298 at paras 19 and 21; Canada (Minister of Citizenship and Immigration) v El Bousserghini, 2012 FC 88 at para 19; Canada (Minister of Citizenship and Immigration) v Dhaliwal, 2008, FC 797 at para 26; Abbas v Canada (Minister of Citizenship and Immigration),2011 FC 145 at para 8; F.H. v McDougall, 2008 SCC 53, [2008] 3 SCR 41).

22     The Court is mindful that this burden ought not to be excessive and that although citizenship is a privilege, the Act does not require corroboration on all counts (El Bousserghini, above at para 19). The Court is also mindful in this regard that it is up to the citizenship judge, taking the context into consideration, to determine the extent and nature of the evidence required in any given case (El Bousserghini, above at para 19).

23     There is however a point beyond which this exercise of discretion, or lack of it, on the part of the citizenship judge cannot be held to be reasonable. This point was reached here when the citizenship judge, who was already deprived of the benefit of the expired passport to verify the respondent's number and length of absences from Canada during the Reference Period, accepted the respondent's rather weak and unconceivable explanation on her unreported absences and did it without inquiring further into these absences.

24     I agree with the applicant that at that point the citizenship judge abdicated his responsibilities.

25     It is indeed one thing for a citizenship applicant to have no supporting evidence, in the form of an expired passport, of the number and length of his or her absences from Canada during the relevant assessment residency period. This is not fatal to the applicant if a reasonable explanation can be provided as to the unavailability of the passport (ElBousserghini, above at para 19). However, it is quite another thing, as is the case here, not to have that kind of supporting evidence and, in addition, to grossly misrepresent to the citizenship authorities the number of absences from Canada and have no reasonable explanation for that.

26     Here, the respondent justified the fact her ICES report showed more entry stamps than those she had reported to the citizenship authorities by saying that her memory had failed her. The citizenship judge accepted those explanations.

27     The problem is that this discrepancy accounted for 6 of the 10 trips the respondent made abroad during the Reference Period. This amounted to more than one half of her absences from Canada during that time. This is not insignificant. But more importantly, it is hardly conceivable that someone's memory would fail him or her to such a degree. What is particularly inconceivable is that while the respondent could not remember this significant number of trips abroad, she was apparently able to remember that they were all short trips.

28     This whole story was, on its face, hardly credible. In any event, it showed on the part of the respondent a degree of carelessness which is incompatible with the spirit of the Act and the very nature and purpose of the naturalization process. In accepting that story as sufficient justification for this major discrepancy in the respondent's citizenship record and in relying on her testimony to establish residency, without requiring any form of corroboration in a context where the record showed strong indications of material omissions, the citizenship judge sent the wrong message. He abdicated his responsibilities and discredited the whole process. He basically gave 'carte blanche' to the respondent and, by doing so, significantly altered the onus citizenship applicants bear in establishing that they qualify for a grant of Canadian citizenship.

29     In such a context, the citizenship judge had no other choice, in the Court's view, but to either dismiss the respondent's application as being unsubstantiated for lack of sufficient, consistent and credible evidence (Abbas, above at para 8), or inquire further into its deficiencies before making a decision. Neither was done. This was an unreasonable outcome on the face of the record and of the law, which requires a more rigorous approach to the assessment of citizenship applications (Elzubair, above at para 21; Dhaliwal, above at para 26).

30     The respondent's main argument is that there is a presumption that her testimony was truthful. Like most presumptions, this presumption will only operate to a certain degree. Here, with the omissions and contradictions as to the number of trips abroad, the weak and fainted justification for those omissions and contradictions and the lack of corroborative evidence, there is simply no room for that presumption to apply (Canada (Minister of Employment and Immigration) v Dan-Ash, (FCA) [1988] F.C.J. No. 571 (QL); Bakare v Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 31 (QL); Adu v Canada (Minister of Employment and Immigration), (FCA) [1995] F.C.J. No. 114 (QL); Diadama v Canada (Minister of Citizenship and Immigration), 2006 FC 1206, [2006] F.C.J. No. 1518 (QL); Kahiga v Canada (Minister of Citizenship and Immigration), 2005 FC 1240 at para 10, [2005] F.C.J. No. 1538 (QL); Oppong v Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1187 at para. 5 (QL)).

31     As Mr. Justice Harrington pointed out in El Bousserghini, above at para 19, it would be extremely unusual and perhaps reckless to rely on the testimony of an individual to establish his residency, with no supporting documentation. In the context of the present case, where, as indicated above, there was not only an old passport availability issue, but also, unlike in El Bousserghini, an issue of undeclared absences from Canada, it was reckless to rely solely on the respondent's testimony to establish her residency.

32     Here, there was nothing on record allowing the citizenship judge to measure the impact of the undeclared absences on the number of days the respondent was required to be physically present in Canada during the Reference Period. As the citizenship judge clearly appears to have applied the physical presence residency test to the respondent's case, this issue became of central importance but it was not treated by the citizenship judge in a way that meets the standard of reasonableness.

33     As a result, the applicant's appeal is granted and the citizenship judge's decision, quashed. As the applicant did not seek costs, none will be awarded.

34     As the law stands now, the respondent is at liberty to re-apply for citizenship at the moment of her choosing. If she does, this will hopefully be done in a way which is respectful of the Act's spirit and of the nature and importance of the naturalization process.

JUDGMENT

THIS COURT'S JUDGMENT is that the appeal is granted, without costs.

LEBLANC J.

"ASSISTANT MANAGER" OR "MANAGER'S ASSISTANT"? RESIDENCE APPLICATION DENIED

The question may appear to be only semantics, but in fact it is essential to the outcome of the case. Note that the officer met with the employer, a somewhat usual move, no doubt sparked by concerns over the nature of the appellation.  In the end, the Federal Court heals that the refusal was reasonable.

Kotanyan v. Canada (Minister of Citizenship and Immigration)

Between
Shushan Kotanyan, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 589

2014 FC 507

Docket: IMM-11768-12

 Federal Court
Toronto, Ontario

Noël J.

Heard: May 20, 2014.
Judgment: May 27, 2014.

(28 paras.)

---

ORDER AND REASONS

NOËL J.:--

I. Introduction

1     This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision rendered by a visa officer of the Embassy of Canada in Moscow [the Officer] rejecting the Applicant's application for permanent residence under the federal skilled worker class. The decision dated November 13, 2012 was based on the fact that the Applicant failed to meet the National Occupational Classification [NOC] requirements.

II. Facts

2     The Applicant is a citizen of Armenia who applied in Moscow, Russia, for permanent residence in Canada as a skilled worker on August 15, 2011.

3     In her application, the Applicant claimed to have worked as an Assistant Restaurant Manager (under NOC 0631 -- Restaurant and food service manager) from April 2007 to September 2009, and as a Product Manager (under NOC 0611 -- Sales, Marketing and Advertising Managers) between December 2009 and the time she filed her application.

4     After the Officer talked to her employers, the Applicant was convoked to an interview on October 16, 2012 to address the Officer's concerns with respect to her application.

III. Decision under review

5     After having spoken with both the Applicant's previous and current employers, the Officer was not satisfied that the Applicant met the requirements set out in paragraphs 75(2)(b) and (c) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]. According to the Officer, the Applicant performed neither "the actions described in the lead statement for the occupation as set out in the occupational descriptions" of NOC 0631 and NOC 0611 nor a "substantial number of the main duties of the occupation as set out in the occupational descriptions of [NOC 0631 and NOC 0611], including all of the essential duties"(paragraphs 75(2)(b) and (c) of the IRPR). She further indicated that while her concerns were to be addressed with the Applicant during the interview held on October 16, 2012, the Applicant nonetheless failed to provide satisfying answers.

6     Ultimately, the Officer found that the Applicant was not an assistant manager, but rather a manager's assistant (in other words, an assistant to the manager).

IV. Decision under review

7     The Applicant contends that the Officer's decision is unreasonable. First, the Officer made an error in assessing the Applicant's duties, omitting to consider the Applicant's duties in organizing banquet events in the restaurant. During the conversation between the Applicant's employer and the Officer, the employer stated that the Applicant was a Manager's Assistant, but he rectified his statement in a "Statutory Declaration" wherein it is explained that this error had to do with translation and that the Applicant was indeed an Assistant Manager. The Applicant's explanation and the evidence submitted, including the Statutory Declaration, were consistent.

8     Second, the Officer breached procedural fairness by adopting a selective approach with respect to the evidence submitted, because she preferred her own interpretation of the Applicant's interview rather than the evidence submitted and she failed to provide adequate reasons.

V. Applicant's further memorandum

9     The Applicant further submits that the Officer failed to appropriately consider the evidence with which she had been presented. More particularly, she failed to refer to an important piece of evidence that contradicts her finding, namely the Applicant's employer's above-mentioned Statutory Declaration. Also, the Officer appeared to have a"closed mind" in respect to the Applicant's claim. In addition, the Officer failed to address the verifiable and credible evidence submitted by the Applicant the October 16, 2012 interview to the effect that she indeed performed the duties as an assistant manager, i.e. banquet planning activities.

VI. Respondent's reply

10     The Respondent claims that the Officer's decision is reasonable. Considering that her affidavits were never sworn, the Applicant submitted no evidence in support of her allegations that there are inconsistencies between her version of the October 16, 2012 interview and what was reported about this interview in the Global Case Management System notes [GCMS notes]. The Officer did consider the Statutory Declaration in the GCMS notes but reasonably decided to put more weight on the Applicant's actual statements and that of her employer in relation with the duties performed by the Applicant, and it was certainly open for the Officer to do so.

11     In addition, the Officer's reasons are entirely sufficient and the assessment made was reasonable considering the circumstances of the case and the evidence on file.

VII. Issue

12     Did the officer err in rejecting the Applicant's application for permanent residence under the federal skilled worker class?

VIII. Standard of review

13     As recently confirmed by Justice O'Keefe of this Court, a visa officer's determination of an "applicant's foreign skilled worker application is a finding of fact and law, reviewable on a reasonableness standard" (see Butt v Canada (Minister of Citizenship and Immigration), 2013 FC 618 at para 13, [2013] FCJ No 695; see also Anabtawi v Canada (Minister of Citizenship and Immigration), 2012 FC 856 at para 28, [2012] FCJ No 923; Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] SCJ No 9 [Dunsmuir]).

14     Accordingly, this Court shall intervene only if the Officer came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence with which it had been presented (Dunsmuir, above, at para 47). Under this standard, it is not up to the Court to reweigh the evidence or "to substitute its own view of a preferable outcome." (Canada(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] SCJ No 12)

IX. Analysis

15     The Applicant applied under NOC 0631 and NOC 0611. That being said, in her written submissions as well as at the hearing, she takes issue only with the fact that her application for permanent residence as an Assistant Restaurant Manager was rejected. As such, the analysis herein shall focus only on the Officer's analysis of the application as it concerns NOC 0631, and for the reasons set out in the following paragraphs, I find that the Officer's decision was entirely reasonable and does not warrant the intervention of the Court.

16     According to the Officer, the Applicant failed to satisfy paragraphs 75(2)(b) and (c) of the IRPR, which set out some of the requirements to be satisfied in order for a foreign national to be considered a federal worker:

·        Immigration and Refugee Protection Regulations, SOR/2002-227 

PART 6 ECONOMIC CLASSES

Division 1

Skilled Workers

Federal Skilled Workers

[...]

Skilled workers

75. (2) A foreign national is a skilled worker if

[...]

·        (b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification; 

·        (c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties; 

[...]

* * *

·        Règlement sur l'immigration et la protection de réfugiés, DORS/2002-227 

PARTIE 6 IMMIGRATION ECONOMIQUE

Section 1

Travailleurs qualifiés

Travailleurs qualifiés

[...]

Qualité

·        75. (2) Est un travailleur qualifié l'étranger qui satisfait aux exigences suivantes: 

[...]

·        b) pendant cette période d'emploi, il a accompli l'ensemble des tâches figurant dans l'énoncé principal établi pour la profession dans les descriptions des professions de cette classification; 

·        c) pendant cette période d'emploi, il a exercé une partie appréciable des fonctions principales de la profession figurant dans les descriptions des professions de cette classification, notamment toutes les fonctions essentielles; 

[...]

17     The lead statement for NOC 0631 -Restaurant and food managers, for the purposes of paragraph 75(2)(b) of the IRPR, is as follows:

·        Restaurant and food service managers plan, organize, direct, control and evaluate the operations of restaurants, bars, cafeterias and other food and beverage services. They are employed in food and beverage service establishments, or they may be self-employed. 

18     The main duties associated with NOC 0631-Restaurant and food managers, for the purposes of paragraph 75(2)(c) of the IRPR, are the following:

·        - 

Plan, organize, direct, control and evaluate the operations of a restaurant, bar, cafeteria or other food or beverage service; 

·        - 

Determine type of services to be offered and implement operational procedures; 

·        - 

Recruit staff and oversee staff training; 

·        - 

Set staff work schedules and monitor staff performance; 

·        - 

Control inventory, monitor revenues and modify procedures and prices; 

·        - 

Resolve customer complaints and ensure health and safety regulations are followed; 

·        - 

Negotiate arrangements with suppliers for food and other supplies; 

·        - 

Negotiate arrangements with clients for catering or use of facilities for banquets or receptions. 

19     Contrary to what is being argued by the Applicant, the Officer did not adopt a selective approach with regard to the evidence in the present case. In fact, I find that she appropriately assessed the evidence.

20     On October 14, 2012, the Officer met with the Applicant's previous employer at the restaurant where they discussed the Applicant's employment in the business. During this encounter, the employer stated that the Applicant was a manager's assistant at the restaurant and he assimilated her duties to those of a waitress, e.g. greet customers, take orders and to serve food (see GCMS notes, Certified Tribunal Record [CTR], at page 5). During the October 16, 2012 interview, as reported in the GCMS notes, the Applicant indicated that she had been hired after seeing an ad for an opening as a manager's assistant (and not an assistant manager). Also during this interview, the Applicant was questioned with respect to whether or not, in her opinion, a manager's assistant and an assistant manager are the same positions, to which she answered: "They are the same thing in my opinion." (see GCMS notes, CTR, at page 4)

21     The Applicant claims that during the October 16, 2012 interview, she gave evidence to the effect that she had been an assistant manager at the restaurant and to have indicated to the Officer that she planned banquets or private functions. While this may be the case, it should be noted that the Applicant, who had the burden of proving her claims (see for example Oladipo v Canada (Minister of Citizenship and Immigration), 2008 FC 366 at para 24, [2008] FCJ No 468), based her assertions on evidence that was weak even non-existent, as she submitted only un-sworn affidavits despite having had over a year to correct the situation. The Applicant did not even produce an affidavit from herself which would have given her sworn version of the interview.

22     After the October 16, 2012 interview, specifically on November 2, 2012, the Applicant sent to the Officer the Statutory Declaration from her previous employer who indicated that she was in fact an assistant manager and not a manager's assistant. This Court notes that the Officer explicitly considered the Statutory Declaration, as well as the documents submitted along with it, in the GCMS notes, stating that despite these documents, and keeping in mind the conversations held with the Applicant herself and the Applicant's previous employer -- the essence of which is describe above --, the Officer remained unsatisfied that the Applicant met the NOC 0631 requirements.

23     This finding is reasonable. Indeed, it is vastly recognized that the assessment and weighing of the evidence lies at the heart of a visa officer's jurisdiction, and as stated above it is not open to this Court to reweigh the evidence:

·        [11] The visa officer has the responsibility of determining whether an applicant has in fact performed the duties of the NOC. Considerable discretion is afforded to the officer in this respect, including interpretation of the NOC. The weight to be assigned the various pieces of evidence is the task of the visa officer and it is not for the court to reweigh the evidence. The onus is on the applicant to satisfy the visa officer that she performed the duties contained in the NOC for the intended application. It is within the visa officer's discretion to assess an applicant's experience on the basis of the applicant's representations at the interview and to assign less weight to the written documents. See Kalia v. Canada (Minister of Citizenship and Immigration), 2002 FCT 731, [2002] F.C.J. No. 998, Atangan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 752, [2002] F.C.J. No. 1017 and Malik v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1050. [My emphasis.] 

·        [Kianfer v Canada (Minister of Citizenship and Immigration), 2002 FCT 1061 at para 11, [2002] FCJ No 1439] 

24     It is also established that a visa officer is presumed to have considered all the evidence with which he or she is presented unless the contrary is proven (Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (FCA) at para 1; see for example Ahmed v Canada (Minister of Citizenship and Immigration), 2013 FC 1083 at para 34, [2013] FCJ No 1180). What is more, the Officer had no obligation to refer to every piece of evidence that is contrary to the decision's finding, and the reasons therein are not to be read hypercritically (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 at para 16, 157 FTR 35). In this regard, the Applicant asserts that the Officer failed to mention the employer's Statutory Declaration and the portion of the October 16, 2012 interview related to the banquet-planning duties assumed by the Applicant. However, as stated above, these elements of contradictory proof, which are indeed crucial to the reasonableness of the decision, were actually addressed by the Officer, who indicated in the GCMS notes that they did not suffice to establish that the Applicant was an assistant manager and not a waitress or manager's assistant.

25     In a nutshell, while evidence to the contrary was submitted -- and duly addressed - the Officer's finding as it relates to the fact that the Applicant was more a manager's assistant or a waitress than an assistant manager in the restaurant was based on a reasonable assessment and weighing of the evidence which constitutes the role of the Officer and not that of the Court. As such, contrary to the Applicant's assertion, the Officer did not have a closed mind and, by way of consequence, did not commit an error in assessing the Applicant's duties.

26     As for the adequacy of the Officer's reasons, this issue must also be considered under the standard of reasonableness (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 22, [2011] 3 SCR 708; see for example Sidhu v Canada (Minister of Citizenship and Immigration), 2014 FC 176 at para 17, [2014] FCJ No 183 [Sidhu]). In the case at bar, I find that the reasons read along with the GCMS notes -- which form part of the reasons (see for example Khowaja v Canada (Minister of Citizenship and Immigration), 2013 FC 823 at para 3, [2013] FCJ No 904) -- were well done, sufficient and adequate as envisioned by case law, as they explain why the permanent resident application failed:

·        [20] The test of adequacy of reasons has been articulated by this Court numerous times, including recently in Canada (Minister of Citizenship and Immigration) v. Jeizan, 2010 FC 323, 386 F.T.R. 1: 

·        [17] Reasons for decisions are adequate when they are clear, precise and intelligible and when they state why the decision was reached. Adequate reasons show a grasp of the issues raised by the evidence, allow the individual to understand why the decision was made and allow the reviewing court to assess the validity of the decision: see Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] S.C.J. No. 23 at para. 46; Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.); VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (F.C.A.), [2001] 2 F.C. 25 (C.A.), at para. 22; Arastu, [2008] F.C.J. No. 1561, above, at paras. 35-36. [Emphasis added.] 

·        [21] While there is no question that an officer's reasons can be brief, they must serve the functions for which the duty to provide them is imposed -- they must inform the Applicant of the underlying rationale for the decision (VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 at para 21-22 (CA)). 

[Sidhu, above, at paras 20-21]

27     In the end, it comes down to whether or not the Officer's finding that the Applicant did not meet the requirements for NOC 0631 falls within the range of acceptable outcomes based on the evidence, and it does. As such, the Officer's decision to reject the Applicant's application for permanent residence as a skilled worker was more than reasonable and this application for judicial review shall be dismissed.

28     The parties were invited to submit a question for certification, but none were proposed.

ORDER

THIS COURT ORDERS that this application for judicial review is dismissed. No question is certified.

NOËL J

PROCEDURAL FAIRNESS BREACHED BY IAD NOT ALLOWING WITNESS TESTIMONY

This is an interesting situation success the appellant was self-represented and the court decided that it was a breach of procedural fairness to deny her the right to call a friend as a witness, even though her testimony was apparently largely irrelevant.  The IAD finding that there was no conjugal relationship was reasonable, bu the breach of process merited the granting of judicial review.

Traverse v. Canada (Minister of Citizenship and Immigration)

Between
Margaret Monica Traverse, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 586

2014 FC 551

Docket: IMM-7254-13

 Federal Court
Halifax, Nova Scotia

Rennie J.

Heard: May 14, 2014.
Judgment: June 6, 2014.

(25 paras.)

---

JUDGMENT AND REASONS

RENNIE J.:--

I. Overview

1     The applicant sponsored Mr. Deloof for a permanent resident visa as a member of the conjugal partner class. However, the visa officer found that the applicant and Mr. Deloof were not in a "conjugal relationship" within the meaning of section 2 of the Immigration and Refugee Protection Regulations (SOR/2002-227) (IRPR). The applicant appealed that decision to the Immigration Appeal Division of the Immigration and Refugee Board (the Board). The Board dismissed the appeal, similarly, on the basis that the applicant's relationship with Mr. Deloof was not a conjugal relationship. The applicant brings this judicial review application to set aside that decision of the Board.

2     The judicial review is granted. Though I conclude that the Board reasonably found no conjugal relationship, I ultimately grant the judicial review for a breach of procedural fairness relating to the manner in which the Board handled one aspect of the hearing.

II. Key Facts

3     The applicant is a Canadian citizen. Mr. Deloof, whose visa application she sponsored, is a citizen of Belgium. The applicant identifies Mr. Deloof as her partner in her application.

4     The applicant and Mr. Deloof met online in July 2008 and in person in September 2008. At the time, Mr. Deloof had been working in Canada as a driver of heavy trucks under a work permit that was valid from May 2008 -- May 2010. However, in October 2008, Mr. Deloof was convicted for impaired driving. As a result of his conviction (and the corresponding two-year prohibition from driving), he was no longer able to work as a truck driver. Further, a section 44 Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) report was prepared, alleging that he was inadmissible to Canada for criminality. A deportation order was issued on December 19, 2008.

5     Given his conviction, the applicant suggested that Mr. Deloof live with her in her home in Truro, Nova Scotia. He did so from mid-November 2008 until January 2, 2009, when he left Canada.

6     Since his departure, the applicant has been to visit Mr. Deloof in Belgium three times: in April 2009, for about four weeks; in 2010, for about three months; and from December 2011 to the end of January 2012. This last visit was cut short due to the death of the applicant's mother.

7     Throughout their five year relationship the applicant and Mr. Deloof have cohabited for approximately seven months. They are not married and have no children. The applicant has significant physical limitations and reduced mobility, as a result of which she has been unable to work since 2000. This condition explains her lack of travel in recent years. Friends and family perceive them to be a "couple," and the applicant was significantly involved in Mr. Deloof's legal proceedings.

8     In dismissing the appeal the Board wrote:

·        What are even more significant and alarming are the appellant's statements about the possibility of marrying the applicant. Aside from the issue of the procedures in Belgium, the appellant stated that there had been no question of marriage because her personal preference would be to live with the applicant for at least one year before marrying him. 

[...]

·        [T]he most relevant factors for assessing an individual's level of commitment to their partner are still the financial commitment and the effort made to spend as much time as possible with that partner, despite the difficulties and obstacles encountered. Given the evidence, the panel is not at all satisfied that within the context of a five-year relationship, the effort made by the appellant and the applicant reflects the level of commitment of a married couple. 

9     However, in coming to that conclusion, the Board also summarily dismissed one of the applicant's witnesses from providing testimony (described in greater detail below).

III. Issues

10     There are two issues in this case.

·        1. 

Whether or not the Board made a reviewable error in its assessment of the alleged conjugal relationship between the applicant and Mr. Deloof. 

·        2. 

Whether or not the Board violated the applicant's procedural rights by not permitting one of her witnesses to provide testimony. 

IV. Standard of Review

11     Reviewing the Board's decision regarding the conjugal relationship is subject to a standard of reasonableness. There could be different opinions, simultaneously reasonable, based on the facts as found, that the relationship was or was not conjugal. A reasonable decision must be defensible in respect of the facts and the law, and reflect an intelligible, transparent justification and application of the law to those facts: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 59; Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47.

12     However, a violation of procedural fairness -the second issue -- is subject to a standard of correctness: Turner v Canada (Attorney General), 2012 FCA 159 at para 38.

V. Analysis

A. The Board Reasonably Assessed the Absence of a Conjugal Relationship

13     "Conjugal partner" is defined at section 2 of the IRPR and means:

·        [I]n relation to a sponsor, a foreign national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year. 

* * *

·        À l'égard du répondant, l'étranger résidant à l'extérieur du Canada qui entretient une relation conjugale avec lui depuis au moins un an. 

14     The Board approached the issue of whether the parties were in a conjugal relationship by following M v H, [1999] 2 SCR 3, which specifies seven non-exhaustive criteria, namely:

·        a) 

shared shelter; 

·        b) 

sexual and personal behaviour; 

·        c) 

services; 

·        d) 

social activities; 

·        e) 

economic support; 

·        f) 

children; and 

·        g) 

societal perception of the couple. 

15     The applicant takes issue with these criteria because they were established in the context of conjugal partners who live in the same country (M v H arose under the Ontario Family Law Act). In particular, the applicant argues, convincingly, that the Board failed to tailor them to the unique circumstances of this case where the applicant cannot travel to Belgium by reason of her disability, and Mr. Deloof cannot travel to Canada because of the outstanding section 44 order. That being said, applying these established principles, with adequate sensitivity to the unique context of partners living in separate countries, is reasonable.

16     The panel relied on the M v H criteria and applied them reasonably in their decision.

17     In this case, the Board considered evidence from the applicant which established that:

·        a) 

They are not married; 

·        b) 

They do not have children; 

·        c) 

They shared shelter minimally and intermittently for at most seven months during five years; 

·        d) 

Have been intimate and are perceived by their friends as a couple; 

·        e) 

Shared some social activities while visiting one another; 

·        f) 

Provided economic support for visits and these legal proceedings but do not share any assets or rely on each other for financial support; 

·        g) 

Have not seen one another since January 2012; and 

·        h) 

That Ms. Traverse had not made significant efforts to obtain any status in Belgium. 

18     In light of that evidence, the Board concluded that the couple's efforts did not reflect the level of commitment of a married couple. In their view, the evidence supported, at best, a plan to have a conjugal relationship in the future: Gibbs v Canada (Minister of Citizenship & Immigration), 2004 CarswellNat 6212. Indeed, the applicant's evidence before the Board was that she only wishes to adopt marriage-like attributes, such as combining assets, on the condition that Mr. Deloof moves to Canada, suggestive of an intention to form a conjugal relationship, rather than one having already crystallized.

19     I accept the applicant's argument that the underlying decision is not perfect. It appears to mischaracterize the applicant's health condition and reduced mobility, which informs her explanation for not having visited Mr. Deloof in recent years. Additionally, the underlying decision may have placed inordinate emphasis on factors from M v H like combining finances and common shelter given that those factors are clearly more difficult for partners living apart to satisfy -- especially when those partners have physical and legal barriers to being together. However, perfection is not the controlling standard. Despite these gaps in the consideration of the evidence, when the decision is assessed in the context of the evidence as a whole, no reviewable error arises from the conclusion that they were not in a conjugal relationship. A reasonable test was applied through a reasonable weighing of various factors in the complicated assessment of a conjugal relationship.

B. The Board Breached the Applicant's Right to Procedural Fairness

20     A second challenge to the decision arises from the summary decision of the Board not to hear a witness. Late in the day, near 6:00 p.m., the applicant asked to call a witness. The witness had been excluded from the hearing throughout the day. The transcript reads:

BY PRESIDING MEMBER (to appellant)

·        - 

Do you want to have your friend in? 

BY APPELLANT (to presiding member)

·        - 

Yeah. 

BY PRESIDING MEMBER (to appellant)

·        - 

I don't have any questions for her. 

BY APPELLANT (to all)

·        - 

Nobody's got questions for her? 

BY PRESIDING MEMBER (to appellant)

·        - 

I don't have, but I'm not sure if the Minister's counsel would have any questions for her. 

BY MINISTER'S COUNSEL (to presiding member)

·        - 

No. 

BY APPELLANT (to presiding member)

·        - 

I have only a few questions, it'll be very quick. 

BY PRESIDING MEMBER (to appellant)

·        - 

It's about what, because if it's admitted by the Minister's counsel then there is no need to. 

BY APPELLANT (to presiding member)

·        - 

I'm sorry? 

BY PRESIDING MEMBER (to appellant)

·        - 

What exactly she will come to say in general? 

BY APPELLANT (to presiding member)

·        - 

What I want her -- well, basically what I want her to say (inaudible) --- 

BY PRESIDING MEMBER (to appellant)

·        - 

I just want to avoid to repeat information that is on file that you've mentioned, and that he's mentioned. 

BY APPELLANT (to presiding member)

·        - 

Okay. 

·        - 

These are my questions I was going to ask her, so you could tell me. 

·        1. 

How long have you known Margaret? How long has she known me? 

·        2. 

When did -- when did you first meet Marnix Deloof? 

·        3. 

Where was your first contact with Mr. Deloof? 

·        4. 

Do you --- 

BY PRESIDING MEMBER (to appellant)

·        - 

This we all know because you mentioned it. 

BY APPELLANT (to presiding member)

·        - 

Okay. 

·        - 

So these three are no's? 

BY PRESIDING MEMBER (to appellant)

·        - 

No. 

[...]

BY PRESIDING MEMBER (to minister's counsel)

·        - 

Do you have any concerns about --- 

BY MINISTER'S COUNSEL (to presiding member)

·        - 

I don't have any concerns that's she's -- I believe she's going to come here and say that for her it's a genuine relationship. 

BY APPELLANT (to presiding member)

·        - 

We don't need her then. 

21     Procedural fairness encompasses a broad range of protection, but its content is informed by the context, statutory and jurisprudential nature of the issues which it is called upon to adjudicate. Accordingly, Board members, sitting in their quasi-adjudicative/investigatory role, have discretion to direct the proceedings before them. They need not sit passively and listen to repetitive evidence or irrelevant evidence simply because a party wishes to call that evidence.

22     There are, however, several factors unique to this case which support the finding of a breach of procedural fairness. I note that the applicant was self-represented, and, it is unclear as to why she could not call the witness. In the dialogue between the Minister's counsel and the Board, the applicant was clearly an unequal participant. I note, as well, that the Board readily accepted the initial characterization of the proposed evidence offered by the Minister's counsel to the effect that it was simply to prove that the relationship was genuine. How the Minister's counsel knew this, and whether it was in fact true, remains unknown.

23     The member pre-emptorily dismissed the witness's testimony. After being told that the applicant wished to call the witness the member said she had no questions for her, although she had no idea as to what the witness would say.

24     Counsel for the Minister correctly points out that no adverse findings of credibility were made against the applicant and that the witness's evidence was only tangentially relevant to the central legal question. The member accepted that they were perceived as a couple, and that they were in a loving relationship. Nevertheless, she concluded that their relationship did not reflect the degree of commitment one would see in a conjugal relationship.

25     These observations, while accurate, overlook the fact that the evidence of this witness could have affected the Board's appreciation of the evidence in respect of the M v H factors and reinforced the weight given to aspects of the applicant's evidence. No pressing reason motivated or justified the pre-emptory rejection of apparently relevant evidence. As a consequence, I find a breach of procedural fairness and grant the application for judicial review.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is granted. There is no question for certification.

RENNIE J.