Date: 20030212
Docket: IMM-2209-02
Neutral citation: 2003 FCT 150
BETWEEN:
HARINDER SINGH SIHOTA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] Harinder Singh Sihota invokes breaches of procedural fairness to set aside, in this judicial review application, the April 19, 2002 decision of Kim Workun of the Immigration Appeal Division of the Immigration and Refugee Board (the "tribunal") which dismissed his appeal from a determination by a visa officer that his wife was not a member of the family class because of the prohibition contained in subsection 4(3) of the Immigration Regulations, 1998, (the "Regulations") which provides:
The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.
[2] His alleged principal breach is that the presiding member imposed inflexible time limits either in terms of the number of witnesses which could be called, the time within which each of them could testify or the overall time for the hearing, all of which, he says, resulted in his inability to properly present his case, particularly since he has a speech impediment.
[3] Subsidiarily, the applicant claims the presiding member interfered with the proposed testimony of his sister signalling an incorrect analysis of what was at issue in the case and also put undue weight on the issue of consummation of the marriage.
[4] The principal basis for the tribunal dismissing the appeal was the credibility of the applicant and his wife who testified from India via teleconferencing. Those credibility findings have not been attacked by the applicant except the applicant's point concerning the overemphasis the tribunal is said to have put on the consummation issue.
[5] The tribunal's hearing information sheet indicates the hearing was to start at 1:30 p.m. on Tuesday, April 16, 2002, and three witnesses were to be called by the applicant. The tribunal record shows the hearing started at 1:40 p.m., the applicant's three witnesses were called: himself, his sister and his wife, and that it concluded at 4:00 p.m. after hearing submissions from both counsel. Counsel for the applicant was an immigration consultant with legal training.
[6] My examination of the transcript leads me to conclude there is no substance to the applicant's principal ground - that he could not fairly present his case.
[7] At the opening of the hearing, there was a discussion on the expected time the hearing would take and time estimates were discussed as is normal in any case. The estimated time for the hearing was three hours: "probably" one hour for each witness (½ hour in direct and ½ in cross). Counsel for the applicant said, "I don't know if I can get finished within a half hour but it will be close to it ma'am" to which the presiding member responded, "Well, just be efficient..." to which counsel for the applicant noted only one witness required interpretation which "is going to be able to accelerate matters".
[8] The transcript shows the applicant was fully examined by his counsel and there was no expression by the tribunal that he should speed up his examination. With cross-examination and the tribunal's questions, the applicant's testimony concluded in an hour.
[9] The applicant's sister then testified with the applicant's counsel estimating correctly he would take only 15 to 20 minutes. There was no cross-examination.
[10] The applicant's wife then testified and she was examined by the applicant's counsel, again without any pressure as to timing from the presiding member. She was cross-examined.
[11] At page 94 of the certified record, the applicant's counsel was asked by the tribunal whether he had any further evidence to which he responded "No". Submissions were made and the hearing completed by 4:00 p.m.
[12] On this record, it has not been shown the applicant had an unfair hearing and was under any pressure to complete his case. The case proceeded efficiently and finished ahead of schedule. Counsel for the applicant declined to call further evidence. Nowhere in the transcript is there any indication by counsel for the applicant he needed more time. There is no substance to the applicant's allegation his father was not allowed to testify.
[13] There is no evidence before the tribunal and before this Court the applicant had a speech disability which affected his testimony.
[14] The two other subsidiary grounds must be dismissed. The presiding member did not interfere with what the applicant's sister proposed to testify. She only indicated that subject matter was not in issue so her testimony on that point was unnecessary.
[15] The issue of consummation was relevant but was not distorted nor unduly weighed. The contradictory evidence on the point went to credibility as it properly should have.
[16] For these reasons, this judicial review application is dismissed. No certified question was proposed.
(Sgd.) "F. Lemieux"
Judge
Vancouver, B.C.
February 12, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2209-02
STYLE OF CAUSE: HARINDER SINGH SIHOTA v. MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 11, 2003
REASONS FOR ORDER: LEMIEUX J.
DATED: February 12, 2003
APPEARANCES:
Mr. Jasper Bomhof for Applicant
Ms. Pauline Anthoine for Respondent
SOLICITORS OF RECORD:
Jasper Bomhof for Applicant
Vancouver, B.C.
Morris Rosenberg for Respondent
Deputy Attorney General of Canada