Traverse v. Canada (Minister of Citizenship and
Immigration)
Between
Margaret Monica Traverse, Applicant, and
The Minister of Citizenship and Immigration, Respondent
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.
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.
Whether or not the
Board made a reviewable error in its assessment of the alleged conjugal
relationship between the applicant and Mr. Deloof.
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:
shared shelter;
sexual and personal
behaviour;
services;
social
activities;
economic support;
children; and
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:
They are not
married;
They do not have
children;
They shared shelter
minimally and intermittently for at most seven months during five years;
Have been intimate and
are perceived by their friends as a couple;
Shared some social
activities while visiting one another;
Provided economic
support for visits and these legal proceedings but do not share any assets or
rely on each other for financial support;
Have not seen one
another since January 2012; and
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.
How long have you known
Margaret? How long has she known me?
When did -- when did
you first meet Marnix Deloof?
Where was your first
contact with Mr. Deloof?
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.
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