Date: 20010330
Docket: IMM-1482-00
Neutral Citation: 2001 FCT 257
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
ANNA DAVYDENKO, residing and domiciled at
7460, Kingsley Road, app. 107, Côte St-Luc,
in the province of Quebec, H4V 1P3
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application by the Minister for judicial review of the decision of the Immigration and Refugee Board, Appeal Division, dated March 10, 2000. By that decision, the tribunal granted the respondent's appeal to sponsor her spouse, Mr. Iskander Galiev, for permanent residence.
[2] The tribunal observed that the correct standard of proof was that of the preponderance of the evidence and concluded that the respondent had met this burden. The tribunal's decision essentially rests on the following findings:
. . . L'appelante fait allusion aux observations dans la lettre de refus à l'effet qu'elle et son conjoint se connaissent peu. L'appelante a déclaré que tous les deux se connaissent assez bien. En effet, elle a répondu aux questions posées concernant leur relation personnelle et elle a démontré une connaissance de la vie et des activités de son conjoint. J'ai trouvé l'appelante crédible dans son témoignage. Elle a répondu spontanément et avec franchise aux questions posées.
[3] The tribunal also noted that the letter of refusal issued by Immigration Canada was not written by the same person who had interviewed Mr. Galiev. The officer who wrote the refusal simply relied on the notes of the interviewer. The tribunal concluded: "Donc, la décision de l'agent des visas est affaiblie parce que celui qui a pris la décision n'a pas mené l'entrevue."
[4] Subsection 4(3) of the Immigration Regulations, 1978, which is relevant to the present case, reads as follows:
4. (3) 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.
4. (3) 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.
[5] A determination of exclusion under subsection 4(3) of the Immigration Regulations, 1978 is subject to a two-prong test (Horbas v. M.E.I., [1985] 2 F.C. 359). This test is explained by Rouleau J. in M.C.I. v. Agyemang (May 20, 1999), IMM-1906-98, at paragraph [10]:
The purpose of subsection 4(3) of the Regulations is to prevent parties from bypassing, for immigration purposes, the selection criteria with which most immigrants must comply, by artificially creating a family relationship through a form of marriage. The test at subsection 4(3) is two fold. First, a marriage must be entered into primarily for the purpose of gaining admission to Canada. Second, there must be no intention on the part of the prospective immigrant to reside permanently with the sponsoring spouse. The visa officer, in conducting an assessment, must consider the authenticity of the marriage from the perception and motives of the sponsored spouse. . . .
[6] As has been consistently stated by this Court, in order to disqualify an applicant under subsection 4(3), both branches of the test must be met; see Horbas, supra, at page 369:
. . . It must be kept in mind that in order to reject such an application on the basis of this subsection, it must be found that there is both a marriage entered into by the sponsored spouse primarily for purposes of immigration and lack of intention on his or her part to live permanently with the other spouse. . . .
[7] It follows from this passage that an applicant will not be disqualified if he or she does not meet one or the other of these prongs. This interpretation is also consistent with the following passage from a decision of the Immigration Appeal Board in Ahn v. Canada (M.E.I.) (1987), 2 Imm.L.R. (2d) 23, at page 26:
. . . Subsection 4(3) sets out a double test. If an applicant's intention falls outside the terms of either test, he or she is a spouse for the purpose of the definition of the family class.
[8] In the present case, the tribunal found that the marriage entered into by the sponsored spouse was bona fide, that is, it was not entered into primarily for purposes of immigration. Since the first prong was not met, there was no need to pursue an analysis with respect to the second prong. This view is fully consistent with the case law, which requires that the tribunal engage in a second prong analysis only in the event that the first prong is met.
[9] I cannot, therefore, accept the applicant's argument that the tribunal erred in its evaluation of the totality of the evidence before it. Unless the contrary is shown, the tribunal is assumed to have considered all the evidence presented to it (see Florea v. M.E.I. (June 11, 1993), A-1307-91 (F.C.A.)). Generally, the fact that some of the evidence is not mentioned in its reasons is not fatal to the tribunal's decision (Hassan v. M.E.I. (1992), 147 N.R. 317 at 318 (F.C.A.)).
[10] Here, in my view, the applicant did not succeed in proving that the tribunal's findings with respect to the respondent's marital situation were perverse or capricious. Despite the alleged inconsistencies raised by the applicant, it cannot be said that the tribunal's decision was arbitrary. Much to the contrary, the tribunal found that the respondent had answered all the questions put to her concerning her relation with Mr. Galiev and had demonstrated "une connaissance de la vie et des activités de son conjoint". In light of the tribunal's finding of credibility, this determination provided a sufficient basis for the tribunal's decision.
[11] The applicant also contests the tribunal's finding with respect to the visa officer's decision. I am of the view that the tribunal was well within its right as a trier of fact to evaluate the probative value of the visa officer's determinations and to conclude that the officer's decision was weakened by the fact that it was based on third party observations. The applicant relies on Justice Reed's decision in Rattan v. M.E.I. (1994), 73 F.T.R. 195, to state that the tribunal's role is not to determine whether the visa officer's decision was correct, but rather to assess whether the applicant belonged to the excluded category. The relevant passage reads:
[7] An appeal under s. 77 is not a judicial review where only the correctness of the immigration officer's decision on the basis of the material before him or her is under consideration. This is clear from s. 77(3) which allows for appeals on questions of fact and from the procedure followed which allows the sponsor, in Canada, to call witnesses and other evidence. . . . The Appeal Division's role is not to determine whether the immigration officer's decision was correctly taken, but to determine if the sponsoree is in fact a member of the class of persons excluded by s. 4(3) of the Regulations: Mohammed (Nargisbanu) v. Minister of Employment and Immigration, [1986] 3 F.C. 90; 68 N.R. 220 (F.C.A.) at p. 94 per Thurlow, C.J. For that purpose the sponsor's evidence, and the immigration officer's decision must be reviewed in coming to the decision. If the sponsor can satisfy the panel that the immigration officer's conclusions were incorrect, an appeal is allowed.
[12] I disagree with the applicant's interpretation of this passage. Contrary to the applicant's view, I understand the above-cited passage to mean that, in making a determination under a section 77 appeal, the Appeal Division must determine if, on the basis of the sponsor's evidence and the immigration officer's decision, the sponsoree is a member of the excluded class under paragraph 4(3). If, on that basis, it is convinced that the immigration officer's decision was incorrect, it will allow the appeal. This view is consistent with that expressed by this Court in Horbas, supra, at page 369:
. . . As the Federal Court of Appeal pointed out in the Brar case supra, the appeal process gives access to all of the evidence, the right to cross-examine witnesses for the respondent, to put in evidence and to make submissions. There are important questions of fact here which fall outside the scope of judicial review through prerogative writs and which can be better addressed on appeal, even though they may be mixed with questions of law.
[13] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
March 30, 2001
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