OTTAWA, Ontario, this 11th day of October, 2005
PRESENT: THE HONOURABLE MR. JUSTICE ROULEAU
BETWEEN:
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for a judicial review of a decision by an immigration officer, dated February 7, 2005, wherein the application for landing on humanitarian and compassionate grounds (H & C) of Majid Khan, the Applicant, was rejected.
[2] The Applicant is a citizen of Pakistan, he is a Shia Muslim who is 23 years of age.
[3] He entered Canada from the USA in January 2003. He made a refugee claim the next month, which was denied on February 17, 2004. The claim was denied because the Applicant misrepresented himself, his PIF did not mention that he had been in the USA for 3 years before coming to Canada. The Board found that he was not credible and that he had an Internal Flight Alternative. Judicial review was sought, but leave was denied.
[4] The Applicant met Rajwinder Gandham, his sponsor in June 2003 at the restaurant were they both worked. He moved in with her and they married on December 20, 2003. His sponsor is 35 years old, from the Sikh religion and she has 2 children (Prajvot, 17 years old and Satkrun, 15 years old) from a previous marriage. The Applicant bought a restaurant with his wife in late 2004.
[5] The Applicant submitted his H & C application on March 24 2004, which was based on his marriage, the best interest of the two children and his establishment in Canada. It should be noted that the Applicant was not interviewed by the officer on his H & C application.
[6] The officer found that, although the Applicant was married to a permanent resident of Canada, his personal circumstances were such that the hardship of having to obtain permanent resident visa outside Canada would not be unusual or disproportionate.
[7] As positive factors, he listed:
- spouse in Canada:
- spouse's children in Canada:
- working consistently since arrival.
[8] As negative:
- has received due process through the refugee system:
- Misrepresentation to CIC/IRB:
- family in Pakistan:
- questionable marriage timing and circumstances.
[9] The officer explained that the misrepresentation of the Applicant reflected poorly on his character and contributed negatively to the application. With respect to the marriage, the officer wrote that he was satisfied that they were married to each other. Concerning their purchase of a restaurant, he noted that it demonstrated a business relationship and not necessarily a personal one. Then, the officer pointed out some questionable elements about their marriage: their age difference, different cultural background and the fact they were married so quickly. These elements combined with the Applicant's previous history with Immigration in Canada and in the USA led the officer to conclude the marriage was for the purpose of immigration and to boost his chances of remaining in Canada. The marriage does not warrant an exception under IRPA.
[10] Referring to the best interest of the children, the officer concluded that there was little evidence provided to support the dependency of the children toward the Applicant. He was not satisfied that such a bond had been demonstrated between the Applicant and his wife's children that it would cause undue hardship. Finally, on the establishment of the Applicant, the officer was not satisfied that his actions warrant an exemption.
[11] The Applicant submits one issue, whether the tribunal breach the duty of fairness owed to the Applicant. Basically, the Applicant argues that since the officer had doubts on the genuineness of the marriage, he was entitled to an oral interview and an opportunity to rebut these concerns.
[12] The Applicant concedes that every Applicant is not entitled to an interview but on the specific facts of this case, the Applicant could not know or address the officer's credibility concerns. In the letter send to the Applicant on December 2, 2004, requesting additional information, there was no indication about the concerns of the officer on the bona fides of the marriage.
[13] Since the decision is of exceptional importance to the Applicant, he argues that he is owed more than a minimal duty of fairness in this matter. It is the Applicant's contention that the officer should have interviewed him on his marriage, on the different cultures and religion and on the age difference between the Applicant and his wife.
[14] The Respondent argues that in the context of an H & C, the Supreme Court specified that an oral hearing was not a general requirement. Some of the decisions cited by the Applicant cannot be applied since in these cases, there was contradictory evidence before the decision maker.
[15] The Respondent then submits that the comments on the marriage addressed the weight he placed on this factor when he assessed the totality of the Applicant's circumstances and it is evident that the most prevalent factor was the negative immigration history.
[16] Then, the Respondent insists that the onus is on the Applicant to satisfy the officer that an exemption is warranted in his personal circumstances. Also, the Respondent submits that it is not this Court's role to re-weight the various factors considered on an H & C application.
[17] On judicial review of a decision on an H & C application, the standard of review is reasonableness simpliciter (Baker v MCI, [1999] 2 S.C.R. 817). Further, the Court of appeal stated that: "It is not the role of the courts to re-examine [page369] the weight given to the different factors by the officers". (Canada (MCI) v Legault, [2002 4 F.C. 358 FCA, par. 11)
[18] Dealing with the issue whether an Applicant was entitled to an interview on an H & C application, the Supreme Court in Baker clearly stated that:
However, it also cannot be said that an oral hearing is always necessary to ensure a fair hearing and consideration of the issues involved. The flexible nature of the duty of fairness recognizes that meaningful participation can occur in different ways in different situations. The Federal Court has held that procedural fairness does not require an oral hearing in these circumstances: see, for example, Said, supra, at p. 30.
I agree that an oral hearing is not a general requirement for H & C decisions. An interview is not essential for the information relevant to an H & C application to be put before an immigration officer, so that the humanitarian and compassionate considerations presented may be considered in their entirety and in a fair manner. (par. 34-35)
[19] Also, the Federal Court of appeal recently reiterates that an applicant have no right or legitimate expectation that he will have an interview. (Uhuangho v. Canada(MCI) [2005] F.C.J. No. 50, par. 7)
[20] However, despite the fact that an interview is not necessary in each case, the impugned decision raises some issues that were not reasonably addressed by the Officer. I am of the opinion that the applicant was not afforded "meaningful participation" (Baker, supra) with respect to defending the legitimacy of his marriage. In the present case, the officer dealt with the evidence that before him in a perverse and capricious manner by speculating on the validity of the marriage. He questioned the timing and circumstances of the applicant's marriage using four main factors: (i) the age difference, (ii) the religious difference, (iii) the speed of the marriage, and (iv) the business (rather than personal) nature of the co-owned restaurant.
[21] The Officer finds that the marriage is valid, but illegitimate. However, the determination that the marriage is illegitimate was made without an interview. Each of the four factors on which the Officer made his finding can be a factor in favour of the legitimacy of the marriage. I will briefly discuss each factor in turn, to show that the presumption of legitimacy of a valid marriage must stand, absent evidence to the contrary.
[22] The first factor - the age difference - should not be considered, as a factor in favour of, or against, the legitimacy of the marriage. The age difference, in and of itself, does not indicate that the marriage is illegitimate. If the applicant had wanted to enter into a valid but illegitimate marriage, the applicant can argue that he would not have chosen a woman who is much older. The argument can be made that the age difference is a factor mitigating in favour of a legitimate marriage. The only way to properly assess the legitimacy of the marriage is through an interview.
[23] The same argument can be made for the second factor, the religious difference. Had the applicant desired to form a valid, yet illegitimate marriage, he could have found a young Shia Muslim woman to marry him. In the opinion of the officer, a marriage to a young Shia woman would be more legitimate. The age and religious factors cannot be considered as against the legitimacy of the marriage. The religious difference should not be considered a factor against the legitimacy of the marriage, especially in a multicultural Canadian society that pledges to uphold the credo of 'unity in diversity'. Without an interview, the religious difference is not a valid concern in the present matter.
[24] The third factor - the speed of the marriage - also falls into the same category as the first two factors - an irrelevant consideration, absent an interview. Without a chance to defend the speed of the marriage, the applicant has not been afforded fairness in the present matter.
[25] Finally, the fourth factor considered by the Officer - the business was of a personal nature - is nothing more than speculation on the part of the officer. Without granting the applicant an interview, and a chance to defend the legitimacy of the marriage, the officer breached the duty of fairness.
[26] Given the officer's breach of the duty of fairness, in considering the evidence regarding the legitimacy of the marriage in a perverse and capricious manner, without granting the applicant an interview, I am of the opinion that the application for judicial review should be allowed.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter returned to a differently constituted panel for consideration, having regard to the se reasons.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1291-05
STYLE OF CAUSE: MAJID KHAN v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: September 8, 2005
REASONS FOR ORDER: Rouleau, J.
APPEARANCES:
Mr. Shane Molyneaux FOR APPLICANT
Mr. Jonathan Shapiro FOR RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates
Vancouver, B.C. FOR APPLICANT
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario