I found Justice Boswell’s judgment in Huang v. Canada (Citizenship and Immigration) 2015 FC 905 to be a very fascinating read.
The background facts in Huang are not presented very extensively, as the decision turned mostly on procedural fairness. Ms. Huang was a 63-year old citizen of China who was being sponsored by her Canadian husband. This application came after a 2012 sponsorship via her daughter was refused regarding concerns about the biological relationship and misrepresentation. They submitted their application through Hong Kong.
The interview led the Officer to find that the relationship did not “share a level of financial and emotional interdependence expected of a genuinely married couple. The Officer was also “not satisfied that this is not a bad faith marriage entered into primarily for immigration purposes.”
Interesting aspect #1 – Federal Court Affidavits Containing New Information
As it is well established in jurisprudence, affidavits filed in support of Federal Court proceedings cannot contain new evidence that was not in front of the officer/tribunal who rendered the initial decision on review.
Counsel Richard Wazana brought forward an argument through the Federal Court of Appeal’s decision in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 20 that the new evidence should be admitted. Justice Boswell, concurred on this point in part, writing at paragraph 5 of his decision:
However, since the Applicant has alleged various procedural defects not apparent on the face of the record (Association of Universities at paragraph 20), some of this additional evidence adduced by the Applicant may be considered by the Court in reviewing the procedure by which the decision was rendered.
I have similarly used this argument in a Federal Court case (pending in decision) although we did not expand on it as much as we probably could of. The Association of University Colleges case has not been cited as much as I think it should and it can prove a good counterbalance to selective “recording” of GCMS notes that can often occur and needs to be disputed with affidavit evidence.
Interesting aspect #2- opportunity to meaningfully address Officer’s concerns.
I am sure many of you have seen the classic game show “The Newlywed Game” where newly-married couples are asked a set of similar questions which often reveal contrasting and contradictory answers.
While on the TV show this is a source of laughter and entertainment, in real life this is a major source of application refusals and arguably the very premise of the Immigration Appeal Division (IAD) Spousal Appeal witness testimony process. Differing answers, unsatisfactory answers, culturally unappealing answers can all lead to refusal or negative factors against the genuineness of the relationship.
I applaud Justice Boswell for being very open about his criticism of the current process in his reasoning.
I want to take out a series of interesting quotes from the judgment, as to rewrite them would not do his decision justice. I have also run into almost every single one of these issues in my spousal/judicial review work thus far. Emphasis has been added at several locations.
[7] In the GCMS notes, the Officer listed numerous concerns, notably as to: the inconsistencies or discrepancies in the Applicant’s and her husband’s answers; the Applicant apparently receiving social assistance for housing; her frequent travel to Windsor to visit her daughter and grandchildren; the Applicant seeming to know very little about her husband’s private or personal life (e.g. his hobbies); her previous permanent residence application being refused due to non-compliance and misrepresentation, something which the Officer stated “undermines the credibility of the relationship”; her husband’s economic plans and wanting someone to take care of him, which prompted the Officer to write that “it seems that sponsor’s relationship to applicant is more like a caregiver”; and, lastly, not being satisfied that the stated genesis and development of the relationship demonstrated they were in a genuine relationship.
[8] I agree with the Applicant that it was procedurally unfair for the Officer not to apprise her of some of these concerns as they arose and not to offer her a meaningful opportunity to address such concerns.
[9] Furthermore, I disagree with the Respondent that the duty of procedural fairness was satisfied in this case 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 in this case 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 Officer here should have provided the Applicant with a meaningful opportunity to respond to the concerns in this regard.
A little later on Justice Boswell writes…
[15] In my view, maintaining an arcane exception for spousal interviews is unwarranted in cases where an applicant’s credibility is an issue. There is nothing particularly unique about spousal interviews which would warrant such special treatment. Although applicants may present their spouses as witnesses to the genuineness of their marriage, this does not mean they should be presumed to know exactly how their spouses will respond to every question.
…….
[17] A duty to confront the spouses with any inconsistencies would also not be unduly onerous. It would usually just add a few extra minutes to the end of an interview. This is something which appears to be not unusual (see e.g. Singh v Canada (Citizenship and Immigration), 2012 FC 23 at paragraph 7, 403 FTR 271; Rahman v Canada (Citizenship and Immigration), 2013 FC 877 at paragraphs 8 and 10; Ossete Ngouabi v Canada (Citizenship and Immigration), 2013 FC 1269 at paragraph 9; Lin v Canada (Citizenship and Immigration), 2015 FC 53 at paragraphs 9 and 31).
Why I believe this case has the potential to be VERY important
This case is important because it represents a real challenge of the status-quo of the interview process. Applicants and Sponsors are often put in a lose-lose situation with these interviews. Prepare too much, and sound scripted and not genuine. Prepare not enough, or just be a normal forgetful person, and be found to have differing answers and not genuine.
Furthermore, Citizenship and Immigration Canada in their OP 2 – Processing Members of the Family Class Guide has specifically removed the guidelines/instructions of determining genuineness of the relationship in order to protect system integrity.
Our only real sense of genuineness is (asides from previous case law) has unfortunately come from the controversy surrounding the CIC training manual applying very cultural and economically insensitive characteristics, an issue that I previously covered.
On that note I often find the use of the caregiver ground of refusal (found in Huang as well) very frustrating and insensitive. Cases where there is discrepancy in the financial earnings, career aspirations, and mental/educational capacity of Applicants and Spouses are often chalked as “caregiver” rather than genuine relationships. The cases of this I seen have most often involved spouses from Mainland China. I equate it to an officer questioning “why the hell would you ever marry that person?” It can be quite hurtful.
Overall, what I think Justice Boswell is saying, is that this process needs to be fixed up. Offering an interview and trying to play “good cop/bad cop” to elicit different answers on very minute details in order to undermine credibility requires more procedural fairness.
It is a great decision that I hope visa officers begin applying. My perspective has always been – you never punish 99% of legitimate Canadian couples to try and get at the 1%. In truth, it is the 1% that probably has every single detail memorized and shared to a T.
