Huang v. Canada (Minister of Citizenship and Immigration), 2015 FC 905

• Judge: Boswell, J.
• Court: Federal Court (Canada)
• Case Date: May 21, 2015
• Jurisdiction: Canada (Federal)
• Citations: 2015 FC 905;[2015] F.T.R. TBEd. JL.060

Huang v. Can. (M.C.I.), [2015] F.T.R. TBEd. JL.060

MLB being edited

Currently being edited for F.T.R. - judgment temporarily in rough form.

Temp. Cite: [2015] F.T.R. TBEd. JL.060

Jin Juan Huang (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-3728-14; 2015 FC 905)

Indexed As: Huang v. Canada (Minister of Citizenship and Immigration)

Federal Court

Boswell, J.

July 24, 2015.

Summary:

Huang, a citizen of China, first applied for permanent residence sponsored by her daughter. That application was rejected due to non-compliance and misrepresentation. The following year, Huang applied for permanent residence again, this time as a member of the spouse or common-law partner in Canada class. An immigration officer conducted the interviews separately and ultimately rejected the application, stating that Huang and her sponsor did not "share a level of financial and emotional interdependence expected of a genuinely married couple. I am also not satisfied that this is not a bad faith marriage entered into primarily for immigration purposes." Huang applied for judicial review. The dispositive issue was whether the officer acted unfairly by failing to afford Huang a meaningful opportunity to address the officer's concerns about the credibility of the evidence.

The Federal Court allowed the application. It was procedurally unfair for the officer not to apprise Huang of the officer's concerns as they arose and not to offer her a meaningful opportunity to address such concerns. The Court remitted the application for permanent residence to a different immigration officer for redetermination, with leave to Huang to submit any further information upon such redetermination.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - An immigration officer conducted spousal interviews separately and ultimately rejected the application for permanent residence (spouse or common law partner in Canada class) - On judicial review, the dispositive issue was whether the officer acted unfairly by failing to afford the applicant a meaningful opportunity to address the officer's concerns about the credibility of the evidence - The Federal Court, in granting the application, stated that "it makes sense to interview spouses separately where concerns arise about the genuineness of their marriage. However, that does not mean that applicants must also be denied knowledge of what their spouse said and not be afforded some opportunity to argue that the officer had misunderstood their statements. Once the spouses have been interviewed separately, there is no longer any danger of collusion. If an applicant or his or her spouse should try to retract any of their statements when confronted with inconsistencies, this could simply affect their credibility. A duty to confront the spouses with any inconsistencies would also not be unduly onerous." - See paragraphs 16 and 17.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - An immigration officer conducted spousal interviews separately and ultimately rejected the application for permanent residence (spouse or common law partner in Canada class) - The Federal Court allowed the judicial review application - It was procedurally unfair not to apprise the applicant of the officer's concerns as they arose and not to offer her a meaningful opportunity to address such concerns - The Court disagreed with the respondent that the duty of procedural fairness was satisfied merely by granting the applicant an interview and did not require the officer to tell the applicant whenever her story diverged from that of her sponsor - The officer's concerns were not related to the sufficiency of the evidence but, rather, to the credibility of the applicant herself and the genuineness of the marriage - The breach of procedural fairness was material - Had the applicant been confronted with the supposed inconsistencies, she might have been able to convince the officer that they were just misunderstandings.

Aliens - Topic 1287.2

Admission - Immigrants - Sponsorship - Spouse or common law partner in Canada class - [See both Aliens - Topic 1230 ].

Cases Noticed:

Deng v. Canada (Minister of Citizenship and Immigration) (2009), 387 N.R. 170; 2009 FCA 59, refd to. [para. 4].

Association of Universities and Colleges of Canada et al. v. Canadian Copyright Licensing Agency (2012), 428 N.R. 297; 2012 FCA 22, refd to. [para. 5].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 6].

Khela v. Mission Institution (Warden) et al., [2014] 1 S.C.R. 502; 455 N.R. 279; 351 B.C.A.C. 91; 599 W.A.C. 91; 2014 SCC 24, refd to. [para. 6].

Dasent v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 720; 87 F.T.R. 282 (T.D.), revd. (1996), 193 N.R. 303; 39 Admin. L.R.(2d) 62 (F.C.A.), leave to appeal refused (1996), 206 N.R. 74 (S.C.C.), not folld. [para. 10].

Dashtban v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. TBEd. FE.056; 2015 FC 160, refd to. [para. 11].

Carter et al. v. Canada (Attorney General) et al. (2015), 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 384 D.L.R.(4th) 14; 2015 SCC 5, refd to. [para. 11].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 12].

Kane v. Board of Governors of University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214; 110 D.L.R.(3d) 311, refd to. [para. 12].

Chu (H.V.) v. Canada (Minister of Citizenship and Immigration) (2001), 270 N.R. 149; 2001 FCA 113, refd to. [para. 13].

Nadarajah v. Canada (Minister of Citizenship and Immigration) (1996), 112 F.T.R. 296; 33 Imm. L.R.(2d) 234 (T.D.), refd to. [para. 13].

Singh (Jasbir) v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 489; 73 Imm. L.R.(3d) 21; 2008 FC 673, refd to. [para. 14].

Bar v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 147; 2013 FC 317, refd to. [para. 14].

Grewal v. Minister of Employment and Immigration (1993), 62 F.T.R. 308 (T.D.), refd to. [para. 16].

Singh v. Canada (Minister of Citizenship and Immigration) (2012), 403 F.T.R. 271; 2012 FC 23, refd to. [para. 17].

Rahman v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 439; 2013 F 877, refd to. [para. 17].

Ossete Ngouabi v. Canada (Minister of Citizenship and Immigration), [2013] F.T.R. Uned. 616; 2013 FC 1269, refd to. [para. 17].

Lin v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 7; 2015 FC 53, refd to. [para. 17].

Counsel:

Richard Wazana, for the applicant;

Rachel Hepburn Craig, for the respondent.

Solicitors of Record:

WazanaLaw, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application for judicial review was heard at Toronto, Ontario, on May 21, 2015, before Boswell, J., of the Federal Court, who delivered the following judgment and reasons, dated July 24, 2015, at Ottawa, Ontario.