KELROY SONNEL JOHNSON Applicant v. THE MINISTER OF, 2017 FC 550

Date: 20170606 Docket: IMM-2432-16 Citation: 2017 FC 550 Ottawa, Ontario, June 6, 2017 PRESENT: The Honourable Mr. Justice Gleeson BETWEEN: KELROY SONNEL JOHNSON Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Overview [ 1 ] Mr. Johnson, the Applicant, was denied permanent resident status under the spouse and common-law partner class. After interviewing Mr. Johnson and his spouse on May 24, 2016, the Immigration Officer [Officer] concluded that he failed to satisfy the definition of a spouse under

section 124 (

a) of the Immigration and Refugee Protection Regulations , SOR/2002-227 [ IRPR ]. Specifically, the Officer was not satisfied that Mr. Johnson was in a genuine relationship thereby failing to satisfy

section 4 of the IRPR . [ 2 ] In bringing this Application, Mr. Johnson asks that I declare he meets the requirements for immigration to Canada or in the alternative that I quash the decision and return the matter for redetermination by a different officer. He submits that: (1) the process was procedurally unfair; (2) the Officer ignored material documentary evidence; and (3) the decision is unreasonable. [ 3 ] Having considered the Parties’ written and oral submissions this Application can be resolved on the issue of procedural fairness without the need to address the other issues.

As set out below, I am satisfied that the process was procedurally unfair, that the unfairness may have impacted upon the decision, and the intervention of this Court is warranted. The Application is granted. II. Background [ 4 ] Mr. Johnson is a citizen of St. Vincent and the Grenadines. He arrived in Canada in November 2004 as a visitor, and has remained in Canada since then. He met his spouse on May 1, 2014, and they began to live together on May 30, 2014. [ 5 ] Mr. Johnson proposed to his spouse in September 2014 and they were married in Toronto, Ontario in August 2015.

An application for permanent residence under the spouse or common-law partner in Canada class was submitted in September 2015. [ 6 ] On May 24, 2016 at approximately 11:50 a.m. Mr. Johnson received a phone call from the Officer requiring him to attend an interview at the immigration office by 2:00 p.m. that same day. The Officer advised Mr. Johnson that the purpose of the interview was to establish his identity. Mr. Johnson advised he could not be at the office by 2:00 p.m. and the Officer requested that he arrive by 2:30 p.m. The Officer also advised Mr.

Johnson his spouse need not attend. [ 7 ] Prior to arriving at the office Mr. Johnson spoke with his spouse and although she was not obliged to attend at the interview she chose to accompany him. The Officer interviewed both Mr. Johnson and his spouse separately and together. The interview resulted in inconsistent answers to a number of questions and it was on this basis that the permanent residence application was refused. III. Decision under Review [ 8 ] The Officer’s reasons begin by indicating that the interview was convoked for identity purposes and that Mr.

Johnson was advised his spouse was not required to attend. The reasons indicate that Mr. Johnson appeared, as instructed, with his spouse, although she was not required, and “[Mr. Johnson] and [his spouse] were interviewed separately and asked the same questions.” [ 9 ] The Officer noted a number of discrepancies in the information provided.

The Officer indicates serious credibility concerns as it was unclear from the answers given when the couple met and began to cohabit, why many different avenues of application for permanent residence were considered, and why a fingerprint document submitted in support of the spousal sponsorship application was completed on the same date the couple commenced cohabitation. The Officer also noted inconsistencies relating to whether Mr. Johnson’s spouse was working or attending school, the name of his sister and when he retained the services of an immigration consultant.

The Officer states, relying on an overall assessment of the documentary evidence and the inconsistencies that “I am not satisfied they are in a genuine relationship” . The application was refused. IV. Standard of Review

[10] The standard of review to be applied when addressing questions of procedural fairness is correctness (Kozak v Canada(Minister of Citizenship and Immigration), 2006 FCA 124 at para 44). The Court must determine whether the duty to act fairly has beensatisfied within the specific context of the matter before the Court (Baker v Canada (Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 21 [Baker]). V. Analysis [11] Mr. Johnson argues that the Officer acted unfairly. He was advised on short notice that he was required to attend for aninterview for the purpose of establishing identity.

Despite the notice, the interview was not limited to issues of identity and his spousewas also interviewed. He argues that this was contrary to the Respondent’s own procedures that state “Officers should give applicantsadequate notice regarding the process or the interview that will result or lead to a decision … [and] should accurately describe toapplicants the documentation they are required to submit in order to address their concern”. (Citizenship and Immigration Canada,“Manual – OP 1: Procedure” at

section 8 Procedural Fairness (Ottawa: CIC, as it read at the time)). Mr. Johnson submits the failure tonotify him, his spouse or his counsel of the new purpose of the interview or that the interview would lead to a final decision wasprocedurally unfair. [12] The Respondent counters that the questions posed by the Officer were basic and routine requiring no time for preparation orconsultation. The Respondent submits that the questions posed were not legal in nature and therefore counsel’s presence was not requiredto answer any of the questions posed.

The Respondent further submits that in these circumstances the Officer’s decision to embark on aninterview that included an assessment of the genuine nature of the marriage was in itself adequate notice and by extension that there wasno violation of the principles of natural justice. In the alternative, relying on the Supreme Court of Canada’s decision in Canada(Citizenship and Immigration) v Khosa, (2009 SCC 12 at para 43), the Respondent submits that even if Mr. Johnson was not affordedrequired procedural safeguards, the error was purely technical and does not merit relief.

I cannot agree. [13] The duty of fairness varies and depends upon an appreciation of the context in which the issue arises (Baker, at para 21; Ha vCanada (Minister of Citizenship and Immigration), 2004 FCA 49 at para 40). [14] In Bushra v Canada (Minister of Citizenship and Immigration), (2016 FC 1412 [Bushra]), Justice Henry Brown found theapplicant had been treated unfairly where a visa officer convoked an interview where much turned on certain humanitarian andcompassionate related considerations with no mention of these concerns in notice to the interviewee.

Similarly in Chen v Canada(Minister of Citizenship and Immigration), (2008 FC 1227 [Chen]), the applicants argued before Justice Leonard Mandamin that theofficer’s failure to explain in the notice convoking the interview that questions would turn on the genuineness of marriage was a breachof procedural fairness. Justice Mandamin agreed and further found there to be a higher standard of procedural fairness when s. 4 of theIRPR is engaged (Chen at para 33).

He stated the following at paragraphs 34-35: [35] The applicants had no notice that the marriage issue was vital to their application for a permanent resident visa.

Had theapplicants been notified in advance about this issue, the potential for being denied a permanent resident visa, and the consequence ofbeing ruled inadmissible, they could have had the opportunity to obtain additional documents and make focussed submissions to theOfficer. [36] I conclude that the Officer denied the applicants’ procedural fairness when, having not given advance notice of the purpose ofthe examination, she did not afford the applicants the opportunity to supply further documentation and submissions. [Emphasis added] [15] In this case Mr.

Johnson was told that the interview would address issues related to identity. He was told that his spouse neednot come, although she did. He was given just over 2.5 hours’ notice that the interview, to address concerns related to identity, wouldtake place. He was not advised of the change in the purpose for the interview, that in changing the purpose of the interview it would beaddressing an issue fundamental to his application for permanent residence as a spouse or that the interview would lead to a suddendeterminative decision.

Considering these facts it is difficult to envisage how the Officer’s decision to engage in questions related to s. 4of the IRPR on the spot might be viewed as “adequate notice” as suggested by the Respondent or be procedurally fair in the context ofsection 4 of the IRPR in light of this Court’s jurisprudence. [16] I am also unable to conclude that this error was simply a technical breach not meriting relief.

As noted in both Bushra andChen, had the applicants in those cases received a notice that adequately reflected the nature of the interview, they may have preparedand acted differently, and submissions may have been more focussed before the Officer (Bushra, at para 20; Chen, at para 34). [17] In my view, the reasoning of Justices Brown and Mandamin is applicable to the present application.

The Respondent’sargument that a number of the inconsistencies arose out of simple and routine questions that should not have required time forconsideration or preparation fails to consider the fact that a number of the areas of concern related to a consideration of events that hadoccurred in the past. Had Mr.

Johnson and his spouse received adequate notice explaining that they would be questioned about thegenuine nature of their marriage, they may have prepared differently and they may have been better prepared to reconcile their individualmemories of the time frames that were of interest to the Officer and make focused submissions about their marriage including thepotential of further supporting documentation. One of the reasons for notice is to allow an individual to reflect upon and recall thetimelines of past events. In fact, Mr.

Johnson argues that a number of the inconsistencies the Officer identified were clarified in furtherquestioning. [18] Had Mr. Johnson and his spouse been given adequate notice of the nature of the interview their answers may indeed havebeen more focussed, less confused and the outcome may have been different. VI. Conclusion

[ 19 ] The failure to provide Mr. Johnson adequate notice of the nature and purpose of the interview was procedurally unfair. I am unable to conclude that the breach of fairness was merely technical. The Application is granted and the matter is returned to be redetermined by a different officer. [ 20 ] The Parties did not identify a question of general importance and none arises. JUDGMENT THIS COURT’S JUDGMENT is that : 1. The Application is granted and the matter returned for redetermination by a different decision-maker. 2. No question is certified.

"Patrick Gleeson" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-2432-16 STYLE OF CAUSE: KELROY SONNEL JOHNSON v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 29, 2017 JUDGMENT AND REASONS: GLEESON J. DATED: June 6, 2017 APPEARANCES : Aminder K. Mangat Sandra Dzever For The Applicant Bridget A. O'Leary For The Respondent SOLICITORS OF RECORD : Aminder K. Mangat Barrister and Solicitor Toronto, Ontario For The Applicant

William F. Pentney Deputy Attorney General of Canada Toronto, Ontario For The Respondent