Date: 20030417
Docket: IMM-3368-02
Neutral citation: 2003 FCT 459
BETWEEN:
SUMANDEEP KAUR MANGAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Introduction
[1] These reasons follow the hearing of an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board whereby the Appeal Division dismissed an appeal from a decision of a visa officer. The visa officer had rejected the sponsored application of the applicant's husband on the ground that the applicant's husband is not a member of the family class because, in the words of subsection 4(3) of the Immigration Regulations, 1978[1]:
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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.
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La catégorie des parents ne comprend pas le conjoint qui s'est marié principalement dans le but d'obtenir l'admission au Canada à titre de parent et non dans l'intention de vivre en permanence avec son conjoint.
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The decision under review is dated the 21st of June, 2002.
[2] The Appeal Division quite properly relied on this Court's decision in Horbas v. Canada (Minister of Employment and Immigration)[2] as establishing the appropriate test to be applied on the facts before it. It wrote:
Following the decision in Horbas, ... a two-fold test must be applied in order to disqualify a spouse under the regulations cited. First, the marriage must have been entered into by the applicant [here, the applicant's spouse] primarily for the purpose of gaining the applicant's [spouse's] admission to Canada. Second, there must be no intention on the part of the [applicant's spouse] of residing permanently with the appellant [here, the applicant].
[citation omitted]
[3] The Appeal Division acknowledged that it was not in dispute before it that the applicant and her spouse, who at the time the matter was before the Appeal Division, remained in India, were married.
Background
[4] Very briefly, the background facts are the following.
[5] The applicant was landed in Canada on the 29th of November, 1998 as the sponsored wife of Manjinder Singh Grewal. The applicant and Mr. Grewal had, in India, entered into an arranged marriage some six months earlier. After the applicant's arrival in Canada, she and Mr. Grewal lived together in his parents' home in Winnipeg for some seven days before he left her. Mr. Grewal petitioned for divorce. Jatwinder Bajwa, a friend of the applicant's father, attempted to mediate a resolution to the dispute between the applicant and her first husband, without success. Within a month or two following the desertion of the applicant by Mr. Grewal, the applicant moved to the Toronto area and lived in the home of Jatwinder Bajwa where, at the time of the hearing before the Appeal Division, she continued to reside. The applicant's current husband and the applicant had been known to each other for two years prior to the applicant's landing in Canada. The applicant returned to India. Mr. Bajwa and the applicant's father were actively involved in arranging the applicant's second and current marriage.
The Decision Under Review
[6] The Appeal Division wrote:
I have heard extensive sworn testimony at the appeal hearing from the appellant [here, the applicant] and by Jatinder Singh Bajwa, an old friend of her [the applicant's] father, in person and the [applicant's husband] by teleconference prior to which counsel had filed documentary evidence... in support of the appeal. As this is a de novo hearing in the broadest sense, in keeping with the principle held in the decision in Kahlon, I may and have considered additional evidence, both oral and documentary, as well as that which was before the visa officer in arriving at a decision.
[citation omitted]
[7] The Appeal Division then proceeded with its analysis, presumably on the basis of the totality of the evidence before it, but without any further direct reference to the testimony of Mr. Bajwa or the documentary evidence adduced before it. The Appeal Division expressed concerns about the credibility of the evidence of the applicant and of her husband. It concluded in the following terms:
9. The onus is on the [applicant] to provide sufficient trustworthy and credible evidence to show on a balance of probabilities that gaining admission to Canada was not the primary motivation of [her spouse] in marrying the [applicant] and that the intention of the [applicant's spouse] was to reside permanently with the [applicant]. She has failed to do so.
...
CONCLUSION
1. Based on all the evidence, I find that the [applicant's spouse] 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 [applicant].
[emphasis added]
The Issues
[8] In the Further Memorandum of Fact and Law filed on behalf of the applicant, her counsel described the issues on this application for judicial review in the following terms:
- Did the [Appeal Division] err in law because it completely and absolutely ignored the evidence of the witness Mr. Bajwa?
- Did the [Appeal Division] err in law because it ignored... documentary evidence that was highly relevant to the case as it went to the issue of intent?
- Did the [Appeal Division] err in law because it misconstrued the evidence with respect to its finding that there was a contradiction in the Applicant's evidence?
- Did the [Appeal Division] err in law because it failed to make clear credibility findings with respect to the totality of the evidence of the applicant and indicate clearly what evidence it found credible and what it did not?
Analysis
[9] I will deal together with the failure on the part of the Appeal Division to mention the evidence of Mr. Bajwa and the directly relevant documentary evidence adduced before it.
[10] In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration)[3], Justice Evans, then of the Trial Division of this Court, wrote at paragraphs 15-17 of his reasons:
The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court... nor are agencies required to refer to every piece of evidence that they receive that is contrary to their finding, and to explain how they dealt with it.... That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
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": .... 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.
[citations omitted, emphasis added]
[11] On the same issue, in Ozdemir v. Canada (Minister of Citizenship and Immigration)[4], Justice Evans, by then of the Federal Court of Appeal, wrote for the Court at paragraph 10:
Nor will a reviewing court infer from the failure of reasons for decision specifically to address a particular item of evidence that the decision-maker must have overlooked it, if the evidence in question is of little probative value of the fact for which it was tendered, or if it relates to facts that are of minor significance to the ultimate decision, given the other material supporting the decision.
[12] Finally, in Townsend v. Canada (Minister of Citizenship and Immigration)[5], Justice Snider wrote at paragraph 22:
The purpose of reasons is to tell the person concerned why a particular result was reached. Reasons allow the parties to see that the applicable issues have been considered and to effectuate any right of appeal or judicial review.... What constitutes adequate reasons will depend on the circumstances of each case.... The reasons requirement under the duty of fairness is sufficiently flexible to permit various types of written explanations for the decision to satisfy this requirement....
[citations omitted]
[13] Against the foregoing authorities, I conclude that the Appeal Division erred in a reviewable manner in failing to provide any analysis as to why the testimony of Mr. Bajwa and the documentary evidence that was before it was of no influence in relation to the determination of the Appeal Division that the applicant's spouse entered into his marriage to the applicant primarily for the purpose of gaining admission to Canada and without an intent to reside permanently with the applicant. In reaching this conclusion, notwithstanding the protestation by the Appeal Division that its conclusion was based on "all the evidence", it analyzed only the evidence of the applicant and of her spouse. I am satisfied that the evidence of Mr. Bajwa and the documentary evidence that was before the Appeal Division is evidence that, in the words of Justice Evans in Cepeda-Gutierrez, "... appears squarely to contradict the [Appeal Division]'s [finding]." I am satisfied, once again in the words of Justice Evans, that, in its reasons in this matter, the Appeal Division referred "... in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion," and that therefore "...it may be easier to infer that the [Appeal Division] overlooked the contradictory evidence when making its finding of fact." I make such an inference in concluding that the Appeal Division erred in a reviewable manner.
[14] Put another way, against the brief quotation from the reasons of Justice Snider in Townsend, supra, the reasons of the Appeal Division here under review are simply inadequate to support its conclusion.
[15] In light of my analysis to this point, I will not consider the third and fourth issues raised on behalf of the applicant, as stated earlier in these reasons.
Conclusion
[16] Based upon the foregoing brief analysis, this application for judicial review will be allowed, the decision of the Appeal Division that is under review will be set aside and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.
[17] Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
J.F.C.C.
Toronto, Ontario
April 17, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-3368-02
STYLE OF CAUSE: SUMANDEEP KAUR MANGAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, APRIL 15, 2003
REASONS FOR ORDER BY: GIBSON J.
DATED: THURSDAY, APRIL 17, 2003
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Mr. Robert Bafaro
For the Respondent
SOLICITORS OF RECORD: Waldman & Associates
281 Eglinton Ave. East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030417
Docket:IMM-3368-02
BETWEEN:
SUMANDEEP KAUR MANGAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] SOR/78-172.
[2][1985] 2 F.C. 359 (T.D.).
[3](1998), 157 F.T.R. 35.
[4](2001), 282 N.R. 394 (F.C.A.).
[5][2003] F.C.J. No. 516 (QL), (T.D.).