YESHI LHUNDUP Applicant v. THE MINISTER OF IMMIGRATION, REFUGEES,, 2017 FC 224

Date: 20170223 Docket: IMM-2958-16 Citation: 2017 FC 224 Toronto, Ontario, February 23, 2017 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:YESHI LHUNDUPApplicantandTHE MINISTER OF IMMIGRATION, REFUGEES, AND CITIZENSHIPRespondent JUDGMENT AND REASONS [1] Mr. Yeshi Lhundup (the “Applicant”) seeks judicial review of the decision of a Visa Officer (the “Officer”) refusing hisapplication for a permanent residence visa for entry into Canada. The application for judicial review was allowed from the Bench; theseare the reasons for that disposition. [2] The Applicant is a stateless Tibetan.

He married his wife, also a stateless Tibetan, on January 26, 2007. In 2011, his wifecame to Canada, together with her parents and the child of her first marriage. The wife was granted Convention refugee status in Canadain 2011. [3] The Applicant attended an interview with the Officer on May 30, 2016. He was questioned about his relationship with hiswife, including the circumstances in which they met and the events leading to their marriage. [4] The Officer concluded that the marriage was not genuine.

In setting out the reasons for that conclusion, the Officer focusedupon the 24 year difference in their ages and their inevitable inability to conceive and bear children. [5] A decision of an officer about the genuineness of a marriage, for the purposes of the Immigration and Refugee ProtectionRegulations, SOR/2002-227 (the “Regulations”) is reviewable upon the standard of reasonableness; see the decision in Nahal v.

Canada(Minister of Citizenship and Immigration), 2016 FC 81. [6] The “reasonableness” standard requires that the decision be justifiable, transparent and intelligible, and fall within a range ofpossible, acceptable outcomes; see the decision in Dunsmuir v.

New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190 at paragraph47. [7] The Applicant raised several arguments, including a challenge to the reasonableness of the decision. [8] The Minister of Immigration, Refugees and Citizenship (the “Respondent”) submits that the Officer made no reviewableerrors in the decision and that the decision is reasonable. [9] I agree with the submissions of the Applicant, that the Officer unreasonably focused on the age difference of 24 yearsbetween his age and that of his wife. [10] It is not necessary for me to review the other submissions of the parties. [11] The application for judicial review is allowed, the decision of the Officer is set aside and the matter remitted to anotherOfficer for re-determination, there is no question for certification arising.

JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision of the Visa Officer is set aside andthe matter remitted to another Officer for re-determination, there is no question for certification arising. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: IMM-2958-16 STYLE OF CAUSE: YESHI LHUNDUP V MIRC PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: FEBRUARY 21, 2017 JUDGMENT AND reasons: HENEGHAN J. DATED: fEBRUARY 23, 2017 APPEARANCES : Toni Schweitzer For The Applicant Catherine Vasilaros For The Respondent SOLICITORS OF RECORD : Parkdale Community Legal Services Barristers & Solicitors Toronto, Ontario For The Applicant William F. Pentney, Q.C. Deputy Attorney General of Canada For The Respondent