Federal Court Decisions

 

Date: 20070125

Docket: IMM-388-06

Citation: 2007 FC 85

Ottawa, Ontario, January 25, 2007

PRESENT:     The Honourable Mr. Justice O'Keefe

 

 

BETWEEN:

SOKOL HAKRAMA

ELIZABETH SALAS-CHAVEZ

 

Applicants

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

 

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

O’KEEFE J.

 

[1]               This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the decision of an immigration officer, dated January 9, 2006, which denied the application of Sokol Hakrama (the applicant) for permanent residence on humanitarian and compassionate (H&C) grounds and under the in-Canada Spousal policy.

 

 

[2]               The applicant seeks an order quashing the decision and remitting the matter for redetermination by a different officer. 

 

Background

 

[3]               The applicant, Sokol Hakrama, is a citizen of Albania. He arrived in Canada in May 2000 and immediately made a claim for refugee protection. The applicant alleged a fear of persecution on the basis of his political opinion. 

 

[4]               The applicant met Elizabeth Salas-Chavez in October 2001, when he began coaching her college volleyball team. The couple dated for a few months and were engaged in January 2002.  They married on June 13, 2002, at a small church ceremony, which most of their relatives could not attend given the cost of travel. Ms. Salas-Chavez is originally from Mexico and became a permanent resident of Canada in September 2002. She acquired Canadian citizenship in July 2005. The couple have lived together in a rented apartment since 2002 and have now been married for over four years. The applicant is employed as a truck driver and also works at a hotel. His wife is a university student and works as a personal trainer.

 

[5]               The applicant’s refugee claim was denied on September 10, 2002, and an appeal from the decision was denied in November 2002. The applicant and his wife subsequently filed a sponsorship application for permanent residence and a humanitarian and compassionate (H&C) application for an exemption from the permanent resident visa requirement. This application was refused in January 2004 because the couple failed to submit sufficient documentary evidence to establish that their marriage was genuine. In March 2004, the applicant submitted his second sponsorship and H&C applications. On November 2, 2005, this application was converted to an application under the in-Canada Spousal policy. On January 9, 2006, this application was also rejected on the grounds that the applicant’s marriage to Ms. Salas-Chavez was not genuine. This is the judicial review of the officer’s decision to refuse both the in-Canada Spousal and H&C applications. 

 

Officer’s Reasons

 

[6]               The officer advised that the application for permanent residence under the in-Canada Spousal policy had been reviewed and was rejected since the applicant was unable to show that his relationship was bona fide. The H&C application was also assessed and denied. The notes included as reasons for denying the application refer to the fact that the applicant’s refugee claim and prior permanent residence application had been denied. The officer noted certain facts about the couple including: their income, the circumstances under which they met, and their involvement in volleyball. The most relevant portion of the notes is reproduced below: 

The applicant submitted a copy of a lease from landlord, Gus Leontis confirming that he and his wife live at 1010 Weston Road in Toronto. I note that they have not submitted rent receipts, copies of void cheques or bank statements to show the $800.00 being cashed or paid on a monthly basis. Their names do not appear jointly on mutual assets or bank/chequing accounts. The applicant and his wife also do not appear to share bills or have a level of mutual interdependency normally associated with a married couple. Their names do not appear jointly on any phone/hydro/cable/internet bills.

 

The applicant and Ms. Salas have been married since June 2002. I find it interesting that they have sent only 6 pictures depicting limited activities. They are unable to satisfy me that they are in a bona fide relationship. I am not satisfied that this marriage is for any other purpose than to facilitate immigration to Canada. Applicant is not a member of the Spousal in Canada class.

 

The applicant mentioned that he is requesting a personal interview.  The applicant and his spouse were given the opportunity to make submissions and specifically relating to the marriage. I have chosen not to convoke for interview as there is sufficient evidence on file to proceed with the finalization of this case. 

 

[7]               The officer then assessed the H&C application. He noted the applicant’s personal circumstances including: his membership on the Humber volleyball team, letters of reference, employment history, and establishment in Canada. The officer concluded that the applicant had family in Albania and could seek employment and continue sporting activities there. The officer noted the applicant’s concern that he would be jailed if returned to Albania due to his family’s opposition to the Communists. There was no evidence that his parents had been persecuted for their beliefs, and there were insufficient details to show that he faced a personal risk if returned to Albania. The officer was not satisfied that the applicant would experience unusual or disproportionate hardship if made to apply for a visa from outside the country. The H&C application was therefore refused.

 

Issues

 

[8]               The applicant submitted the following issues for consideration:

            1.         Did the officer err in law and breach the duty of fairness by making his decision without providing the applicant with an opportunity to rebut the finding that a bona fide relationship did not exist?

            2.         Did the officer err in law in the exercise of his discretion by ignoring and misconstruing evidence, fettering his discretion and making findings of fact that were patently unreasonable?

 

[9]               I would rephrase the issues as follows:

            1.         Did the officer breach the duty of fairness by failing to provide the applicant with an opportunity to respond to his concerns?

            2.         Did the officer err in concluding that the applicant’s marriage was not bona fide?

 

Applicant’s Submissions

 

[10]                       The applicant submitted that the general standard of review applicable to H&C decisions made by immigration officers is reasonableness (see Kawtharani v. Canada (Minister of Citizenship and Immigration) (2006), 146 A.C.W.S. (3d) 338, 2006 FC 162). 

 

[11]           The officer doubted the bona fides of the applicant’s marriage because he failed to provide sufficient evidence of mutual interdependence. However, the officer refused his request for an interview to alleviate these concerns on the basis that there was sufficient evidence on file to reach a final decision. The applicant submitted that he and his wife faced considerable hardship should the sponsorship application be rejected. There was a removal order against him which could be activated in the future. His wife stated that she would abandon her studies and career in order to follow her husband, should he be forced to leave Canada. It was submitted that in the circumstances, and given that the credibility of their marriage was a central issue, an interview should have been granted.

 

[12]           In Chitterman v. Canada (Minister of Citizenship and Immigration) (2004), A.C.W.S. (3d) 513, 2004 FC 765, Mr. Justice von Finckenstein held that where credibility issues arise in a matter of the bona fides of a marriage, these questions are best resolved through an interview. In Pham v. Canada (Minister of Citizenship and Immigration) (2005), 139 A.C.W.S. (3d) 166, 2005 FC 539, Mr. Justice Rouleau took note of guidelines that were issued to immigration officers which suggest that interviews should be held in cases where the bona fides of a relationship is in doubt.

 

[13]           The applicant submitted that the circumstances of his case warranted the granting of an interview. This was a first marriage for both, and the couple had been married for over three years when their second sponsorship application was denied. They were married before the applicant’s refugee claim was denied and commenced their first sponsorship application shortly after their marriage and prior to the refusal of the refugee claim. It was submitted that the facts in this case are stronger than those in Pham, wherein the Court determined that it would have been prudent to hold an interview. The applicant submitted that the officer breached procedural fairness in refusing the interview request.

 

[14]           The applicant submitted that the officer’s decision did not meet the reasonableness standard set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193.

 

[15]           The applicant submitted that the officer did not provide a logical explanation for asserting that he and his wife were not in a bona fide relationship. No mention was made of factors which would indicate that it was not a genuine marriage. It was submitted that the applicant and his wife had common interests, were married since June 2002, and provided evidence of cohabitation. The applicant submitted that the officer made a perverse assumption based on faulty logic that was unsupported by the facts. It was submitted that this assumption resulted in a patently unreasonable decision.

 

[16]           The applicant pointed out that the officer made several factual mistakes in his notes. It was submitted that the cumulative effect of these factual errors was to show that the officer failed to carefully consider the materials filed with the application and thus based his findings upon incorrect facts.

 

Respondent’s Submissions

 

[17]           The respondent submitted that H&C applicants have no right to an interview. In addition, since applicants bear the onus of establishing the facts upon which their claims are based, they omit pertinent information from their written submissions at their peril (see Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635, 2004 FCA 38). The respondent submitted that the applicant and his wife were married for three and a half years and could have provided the officer with more than six photos as proof of their relationship. It was submitted that couples typically share expenses and hold assets jointly, and as the applicant and his wife did not, it was reasonable for the officer to conclude that their marriage was not bona fide. 

 

[18]           The respondent submitted that since the applicant bore the onus of satisfying the officer, the provision of obscure submissions did not impose a duty upon the officer to inquire further about an issue (see Owusu above). It was submitted that the applicant could not rely upon the fact that they provided the officer with insufficient evidence to assert than an interview should have been conducted. The respondent submitted that applicants must put their best foot forward by placing all of the information in support of their application before the officer. It was submitted that the refusal to grant an interview was not a breach of procedural fairness (see Bui v. Canada (Minister of Citizenship and Immigration) (2005), 140 A.C.W.S. (3d) 364, 2005 FC 816). The respondent submitted that the applicant was given an opportunity to make submissions about his marriage and that this evidence was fairly considered.  He therefore knew the case to be met and failed to prove the bona fides of his marriage.

 

[19]           The respondent submitted that in the absence of a reviewable error by the officer in rejecting the H&C application, the Court cannot intervene. It was submitted that the Court should not substitute its view of the merits of such an application for that of the officer, even though the claim to be granted permanent residence on H&C grounds may have merit (see Owusu above). The respondent submitted that the factual mistakes pointed out by the applicant were not determinative of the bona fides of the marriage and were immaterial to the application.

 

Analysis and Decision

 

Standard of Review

 

[20]           Breaches of procedural fairness are subject to judicial review on the standard of correctness. An immigration officer’s decision regarding an H&C application is subject to review on the standard of reasonableness (see Baker above). This Court’s jurisprudence indicates that the standard of review applicable to a decision regarding the bona fide nature of a marriage, in the context of spouse in-Canada class permanent residence applications is reasonableness (see Singh v. Canada (Minister of Citizenship and Immigration) (2006), 148 A.C.W.S. (3d) 467, 2006 FC 565 at paragraph 4; Mohamed c. Canada (Ministre de la Citoyenneté et de l’Immigration), 2006 CF 696 at paragraph 39).

 

[21]           Issue 1

            Did the officer breach the duty of fairness by failing to provide the applicant with an opportunity to respond to his concerns?

            The applicant submitted that the officer breached the duty of fairness by failing to provide him with an interview in order to respond to concerns about the bona fides of his marriage. The respondent submitted that the applicant did not have the right to an interview, and should have submitted sufficient evidence in support of his application. As noted by Mr. Justice Rouleau in Pham above, interviews are not necessary to ensure the fairness of a hearing, however, this Court’s recent jurisprudence indicates that interviews may be warranted in cases where the bona fides of a marriage is in question (see also Chitterman above).

 

[22]           The evidence that was submitted to establish that the couple were married included a marriage certificate, photos, a letter from the couple’s landlord confirming that they lived together in a leased premises and a joint insurance policy. A review of the officer’s notes shows that the officer was concerned that a couple who were married since June 2002 had only submitted six pictures of themselves together. I would note there is no requirement to submit a certain number of photos. As well, the officer was concerned that the couple did not have a joint bank account or that their names did not appear jointly on utility bills.

 

[23]           Upon review of the officer’s notes and the file material, I cannot determine what facts would support the officer’s finding that the marriage was not bona fide. The fact that a couple do not have a joint bank account or do not have both of their names on utility bills does not mean that their marriage is not bona fide. There were documents before the officer which indicated that the couple were married and lived together. If the officer doubted the credibility of the documentary evidence presented to show that the couple were in a bona fide marriage, the officer should have called them in for an interview, since there was no factual evidence to show that they were not married.

 

[24]           Section 10.2 of IP8 “Spouse or Common-law Partner in Canada Class”, the respondent’s own policy manual, suggests that an interview should take place if the officer doubts the genuineness of the submitted documents.

 

[25]           I wish to point out that an interview is not always necessary, as the need for an interview will depend upon the facts of each particular case.

 

[26]           I am of the view that the officer’s refusal to grant the applicant’s request for an interview resulted in a breach of the duty of procedural fairness. The application for judicial review is therefore allowed, the decisions of the officer are set aside and the matter is referred to a different officer for redetermination.

 

[27]           Because of this conclusion, I need not deal with the remaining issue.

 

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

 

 

JUDGMENT

 

[29]           IT IS ORDERED that the application for judicial review is allowed, the decisions of the officer are set aside and the matter is referred to a different officer for redetermination.

 

 

 

“John A. O’Keefe”

ANNEX

 

Relevant Statutory Provisions

 

 

            The relevant statutory provisions of the Immigration and Refugee Protection Act, S.C. 2001, c.27 are as follows:

            The relevant statutory provisions of the Immigration and Refugee Protection Regulations, S.O.R./2002-227, state as follows:

 

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-388-06

 

STYLE OF CAUSE:                          SOKOL HAKRAMA

                                                            ELIZABETH SALAS-CHAVEZ

                                                                                                               

and

 

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      January 17, 2007

 

REASONS FOR JUDGMENT

AND JUDGMENT OF:                    O’KEEFE J.

 

DATED:                                             January 25, 2007         

 

 

 

APPEARANCES:

 

Mr. D. Lex Arbesman

Ms. Marjorie L. Hiley                                                               FOR APPLICANTS

 

Ms. Leanne Briscoe                                                                  FOR RESPONDENT

 

 

SOLICITORS OF RECORD:

 

Mr. D. Lex Arbesman

Mr. Marjorie L. Hiley

Toronto, Ontario                                                                      FOR APPLICANTS

 

John H. Sims, Q.C.

Deputy Attorney General of Canada                                         FOR RESPONDENT