Date: 20030923
Docket: IMM-1141-03
Citation: 2003 FC 1096
BETWEEN:
SENGHOUAT TAE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review of a decision of the Immigration Appeal Division (the Appeal Division) dismissing the appeal by the applicant for lack of jurisdiction. This decision was based on the finding that the applicant is not a "member of the family class" of the male applicant, her husband, under section 4(3) of the Immigration Regulations, 1978, SOR/78-172 (the Regulations). This finding is based essentially on the analysis of the contradictory testimony of the spouses. The panel accordingly concluded that there was no credible evidence of contact or communication between the couple prior to the marriage. In view of this lack of evidence, it was impossible to believe in the evolution of a serious relationship leading to the decision to marry out of love and with the intention of living together.
[2] However, a review of the evidence in the record reveals that the panel did not comment on much of the evidence which showed that the spouses did communicate with each other prior to marriage, such as long-distance calls, notices of transfers of funds by which the male applicant sent money to his spouse in Cambodia and some photos of the male applicant and his spouse at the time of his trip to Cambodia in April and May 2002.
[3] The panel should at least have explained why it assigned no weight to this evidence, which bore on a central issue in the file, namely, the nature of the relationship between the spouses. As Mr. Justice Evans stated in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL):
[17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
[Emphasis added]
[4] This is an error by the panel that warrants the intervention of the Court.
[5] For these reasons, the application for judicial review is allowed. The decision of the Appeal Division is set aside and the matter is returned to the Appeal Division for rehearing by a newly constituted panel.
"Danièle Tremblay-Lamer"
Judge
Montréal, Quebec
September 23, 2003
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
Date: 20030923
Docket: IMM-1141-03
Between:
SENGHOUAT TAE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET: IMM-1141-03
STYLE: SENGHOUAT TAE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 23, 2003
REASONS FOR ORDER: THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: September 23, 2003
APPEARANCES:
Kathleen Gaudreau FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kathleen Gaudreau FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec