2006 FC 313
Calgary, Alberta, March 9, 2006
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
and
AMERICAELIZABETH SANCHEZ
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Victor Sara Apaza and his wife America Elizabeth Sanchez (the "Applicants") seek judicial review of the decision made on July 25, 2005 by Immigration Officer Natalie Holder (the "Immigration Officer"). In her decision, the Immigration Officer rejected the "Within Canada Humanitarian and Compassionate Application for Permanent Residence", pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act") and the Immigration and Refugee Protection Regulations, SOR/2002-227, as amended (the "Regulations"). The wife, a Canadian citizen, was the sponsor of her husband, a failed refugee claimant.
[2] The husband is a citizen of Peru who arrived in Canada in January 2001. He met his wife May 2001, in Calgary. After dating, they began living together two years prior to their marriage on August 9, 2003. On May 15, 2003, the husband's refugee claim was dismissed. On November 3, 2003, he submitted a Humanitarian and Compassionate ("H & C") application for permanent residence from within Canada. On December 23, 2003, he applied for a Pre-Removal Risk Assessment ("PRRA").
[3] On February 18, 2005, there was a change in public policy which allowed all foreign nationals, regardless of their immigration status, who are in spousal or common-law relationships with permanent residents or citizens of Canada to have their sponsorship applications assessed under the regulations of the Spouse or Common-law Partner in Canada class. The husband signed an agreement on March 16, 2005, indicating that he wished his H & C application to be assessed under these provisions.
[4] The Applicants were requested to attend an interview on April 25, 2005. The interview was not concluded due to problems with the interpretation that was provided. The interview was rescheduled and took place on May 3, 2005, with a different interpreter. According to the supplementary affidavit filed by the Applicants in this proceeding, the interview lasted some several hours, consecutively and without a break either for the Applicants, the interpreter or the Immigration Officer.
[5] On July 25, 2005, the husband's application for permanent residence from within Canada on H & C grounds was rejected. The decision letter also stated that the case had been assessed under the Spouse or Common-law Partner in Canadaclass and rejected on that ground, as well. The Immigration Officer decided that the Applicants did not meet the requirements of this class because, in her opinion, there was little evidence to show that they were in a genuine marriage and that the marriage had not been entered into primarily for the purpose of acquiring permanent resident status in Canada. The refusal letter provided no detailed reasons; the Immigration Officer's lengthy notes were produced only in the course of this application.
[6] The decision in question was made by an administrative decision-maker exercising delegated power under the Act. In order to determine the applicable standard in reviewing this decision, a pragmatic and functional analysis must be applied. Four factors are to be considered: the presence of a privative clause; the expertise of the decision-maker; the purpose of the legislation, and the nature of the question.
[7] The first factor is neutral, since the Act contains neither a privative clause nor a full right of appeal. Judicial review is available, if leave is granted.
[8] Immigration officers continually deal with assessments of applications for permanent residence and the validity of marriages. Their relative expertise is greater than that of the Court and tends to attract greater deference.
[9] The broad purpose of the Act is to regulate the admission of immigrants into Canada and to maintain the security of Canadian society. This involves consideration of many interests which may conflict with each other. Decisions made in a polycentric context tend to attract judicial deference.
[10] The final factor is the nature of the question. Here, the Immigration Officer was required to exercise her discretion and make factual determinations. This discretion is to be informed by the Act and Regulations, and involves an element of statutory interpretation. The application of the statutory and regulatory provisions to the evidence yields a question of mixed law and fact. Such a question is reviewable on the standard of reasonableness simpliciter.
[11] On balance, the four factors tend toward according some deference to the decision of the Immigration Officer. I conclude that the applicable standard of review is reasonableness simpliciter. This standard was applied by the Supreme Court of Canada in Baker v. Canada(Minister of Citizenship), [1999] 2 S.C.R. 817 in respect of a discretionary decision of a visa officer.
[12] The Immigration Officer here made a finding that the Applicants' marriage was not genuine. She subsequently determined that there were insufficient grounds to exercise discretion on H & C grounds, to allow the husband to apply for permanent residence from within Canada. In my opinion, she committed a reviewable error in reaching her conclusion with respect to the marriage because she ignored relevant evidence that, if believed, would have significant probative value.
[13] In this regard, the Immigration Officer ignored evidence about the ages of the Applicants, the period of cohabitation before marriage, and supporting documents, including doctors' notes, employer reference letters and the filing of joint income tax returns, in reaching her conclusion about the genuineness of their marriage. As well, she focused on irrelevant matters, for example the contents of bedside tables and the timing of the wife's divorce from her previous husband, in assessing the genuineness of their marriage.
[14] I agree with the submissions of the Applicants that the Immigration Officer conducted a microscopic examination of their evidence, for example, concerning the details of the mode of transportation used for their first date.
[15] The Immigration Officer's conclusion respecting the marriage apparently influenced her decision pursuant to section 25 of the Act, that is the H & C decision. In my opinion, the Immigration Officer erred in making that finding. In the result, the application for judicial review is allowed and the matter is remitted to a different Immigration Officer for redetermination. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a different Immigration Officer for re-determination. There is no question for certification arising.
"E. Heneghan"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5002-05
STYLE OF CAUSE: VICTOR SARA APAZA ET AL. v. MCI
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: March 7, 2006
REASONS FOR ORDER
AND ORDER BY: Heneghan, J.
DATED: March 10, 2006
APPEARANCES:
Mr. R. Michael Birnbaum FOR THE APPLICANT
Ms. Camille Audain FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. R. Michael Birnbaum
Calgary Alberta FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT