Date: 20100118
Docket: IMM-2684-09
Citation: 2010 FC 45
Ottawa, Ontario, January 18, 2010
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
PARMANAND
KAMTASINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review challenging a decision of the Immigration
Appeal Division (IAD) of the Immigration and Refugee Board which determined
that the Applicant’s marriage to Indranie Kamtasingh was not genuine.
Mr. Kamtasingh challenged the decision on several grounds, but only the
issue of procedural fairness is worthy of consideration. Mr. Kamtasingh states
that the IAD Member (Member) denied him procedural fairness by preventing him
from calling all of his proposed witnesses.
I.
Background
[2]
Ms. Kamtasingh
is a citizen of Guyana, but in 2005 she was residing illegally in the United
States
with her parents. Mr. Kamtasingh is a Canadian citizen and lives in Ontario.
[3]
The
couple state that they met in July 2000 in Guyana during a
visit by Mr. Kamtasingh. They met again in the United States in 2003 and
claim to have fallen in love. They continued to see one another during
Mr. Kamtasingh’s occasional visits to the United States. They state
they were engaged in 2004 and the evidence shows that they were married in a
small civil ceremony in Schenectady, New York on March 28, 2005. On
July 28, 2005 Mr. Kamtasingh applied to sponsor Ms. Kamtasingh as a
spousal member of the family class under ss. 12(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27. Because that application was
poorly documented, the visa officer was not satisfied that the marriage was
genuine and a visa was refused. A second application was made on July 13, 2007,
but it also was refused for the following reason:
New application submitted. PA now lives
in Guyana with her grandparents, and
the sponsor is working with a consultant. No other changes. This application
was refused last year because it was a marriage of convenience. There is
nothing new in this new application to overturn the previous decision.
[4]
Mr. Kamtasingh
appealed the second decision to the IAD and a de novo hearing was held in
Toronto on April 1,
2009. Mr. Kamtasingh was unrepresented, but he did ask the Member to
assist him with some questioning. The IAD heard evidence from
Mr. Kamtasingh and his brother and it dismissed the appeal on findings
that the marriage was not genuine and that it had been entered into primarily
to assist Ms. Kamtasingh to obtain status in Canada.
[5]
At
the beginning of the hearing the Member and Mr. Kamtasingh discussed the
issue of his available witnesses and the need to call them. Set out below is
the entire relevant exchange:
MEMBER: All right, if you’re
comfortable proceeding. You have some witnesses here?
APPELLANT: Yes, I do.
MEMBER: Here like in the
reception area?
APPELLANT: Yes.
MEMBER: You have two friends,
a brother and an uncle. That’s a lot of witnesses. Why do you need so many
witnesses?
APPELLANT: I wasn’t sure of
who you would want to speak to or what type of information you would be asking.
It’s just ---
MEMBER: Well, the issue really
is the genuineness of the marriage.
APPELLANT: M’hm.
MEMBER: The first visa officer
gave fairly detailed reasons, which I assume you’ve read. The second one
basically adopted the reasons of the first visa officer and said nothing’s
changed.
APPELLANT: M’hm.
MEMBER: So that’s the focal
point, is to go back to that first visa officer and found out what was the -- what
problems did they register, both visa officers, because one adopted the reasons
of the other.
I don’t know what -- I mean, we’ve got
a couple of hours set for this hearing. This is definitely a matter
which should complete today, which should not -- it’s not overly complicated.
It should not go beyond one afternoon sitting.
If some of the -- you know, some of your
witnesses are simply going to reiterate what you are saying yourself I’m not
sure what the point would be.
APPELLANT: Okay.
MEMBER: But that’s -- it’s
your call. I want to hear from you as to do you think there’s anything
different from what you’re about to say as the Appellant that these witnesses
would be providing?
APPELLANT: To be honest,
I’m not totally sure. As of right now actually waiting in the waiting room
is my brother, who was present with me at the wedding, my sister, who is also
here. She is knowledgeable of the wedding. She is -- my parents weren’t able to
attend and the reason being is because of her situations. And I also have my
best friend who knows everything about me as well.
MEMBER: Well, Ms. Kusztra, I
don’t think you’re contesting the fact that there was a wedding; are you? There
seems to be the visa officer wasn’t challenging ---
COUNSEL FOR RESPONDENT: No,
sir.
MEMBER: --- the fact that
there was a wedding ---
COUNSEL FOR RESPONDENT: No.
MEMBER: --- and there were
guests at the wedding and so on. There was some issue over why your parents
didn’t attend but that’s a different issue.
COUNSEL FOR RESPONDENT: And
I believe the Appellant could clarify all of those.
MEMBER: Yeah. So I don’t
think we have to have somebody tell us that there was a wedding that took place
or that he or she was at the wedding. There was a wedding. We’re not challenging
that. The visa officer was really -- had certain issues, such as the
non-attendance of your parents and the fact that there was only one receipt,
all the back and forth time you -- there was a Greyhound bus receipt I believe.
APPELLANT: Yes.
MEMBER: All the times you were
to have visited. And there was some notes I think that the visa officer or
somebody had found that your wife had written which seemed a bit rehearsed.
So those seem to be the major types of --
you know, the major types of issues. So I’m not sure that somebody saying “I
was at the wedding” would really make a dent on that, other than yourself, and
you can speak to that.
APPELLANT: Okay.
MEMBER: Now, your brother
might have some useful information ---
APPELLANT: All right.
MEMBER: --- because you’re
alleging -- what are you alleging with regard to your brother? What will he be
providing?
APPELLANT: The reason why you
have that one Greyhound bus pass is because he himself and his wife were the
ones that would drive me across the border back and forth.
MEMBER: All right. So he
might have some useful information so maybe we’ll hear from the brother.
And what about -- you said your father
was here. What ---
APPELLANT: My sister.
MEMBER: Oh, your sister.
What would she be able to present that you can’t present yourself?
APPELLANT: Nothing really.
MEMBER: Okay. The brother I
can see being useful.
APPELLANT: Okay.
[Emphasis added]
[6]
The
issue presented on this application is whether the Member, by proceeding in
this way, breached the duty of fairness by effectively limiting
Mr. Kamtasingh’s right to fully present his case.
II. Issue
[7]
Did
the Member breach a duty of fairness with respect to Mr. Kamtasingh’s right to
fully present his case?
III. Analysis
[8]
The
determinative issue on this application is one of procedural fairness which
must be assessed on the basis of correctness: see Sketchley v. Canada (Attorney
General),
2005 FCA 404, [2006] 3 F.C.R. 392 at paras. 52-55.
[9]
This
is not a situation where the Member categorically refused to hear from the
witnesses who were available to testify. It is clear, nevertheless, that the
Member actively discouraged their participation on the ostensible ground that,
with the exception of Mr. Kamtasingh’s brother, they could add nothing of value
to the issues of controversy. The Member was also concerned that the hearing be
concluded within the two hours that had been allotted.
[10]
Mr. Kamtasingh
was unwisely not represented by counsel at the hearing. Experienced counsel
would not have allowed the Member to limit the scope of relevancy, particularly
where the credibility of Mr. Kamtasingh was the central issue for
determination. In a situation involving an unrepresented party, the scope of
the duty of fairness is different and I subscribe to the views expressed by my
colleague, Justice Danièle Tremblay-Lamer in Law v. Canada (Minister of
Citizenship and Immigration) (2007), 2007 FC 1006, 160 A.C.W.S. (3d) 879 at
paras. 15-19:
15 Thus, the IAD is to be shown
much deference in its choice of procedure so long as that procedural choice
permits those who are affected by its decision to present their case.
16 Specifically, in the context of
the procedural rights afforded to a self represented party, this Court has held
that an administrative tribunal has no obligation to act as the attorney for a
claimant who refused counsel, and that:
[…] it is not the obligation of the Board
to “teach” the Applicant the law on a particular matter involving his or her
claim. (Ngyuen v. Canada (Minister of Citizenship and
Immigration),
2005 FC 1001, [2005] F.C.J. No. 1244 (QL), at para. 17)
17 However, while administrative
tribunals are not required to act as counsel for unrepresented parties, they
must still ensure that a fair hearing takes place. In Nemeth v. Canada (Minister of Citizenship and
Immigration),
2003 FCT 590, [2003] F.C.J. No. 776 (QL), at para. 13, O’Reilly J. asserted:
[…] But the Board’s freedom to proceed in
the absence of counsel obviously does not absolve it of the over-arching
obligation to ensure a fair hearing. Indeed, the Board’s obligations in
situations where claimants are without legal representation may actually be
more onerous because it cannot rely on counsel to protect their interests.
18 It has also been recognized
that an unrepresented party “[…] is entitled to every possible and reasonable
leeway to present a case in its entirety and that strict and technical rules
should be relaxed for unrepresented litigants […]” (Soares v. Canada (Minister of Citizenship and
Immigration),
2007 FC 190, [2007] F.C.J. No. 254 (QL), at para. 22).
19 Therefore, it is evident that
the specific content of procedural rights afforded to unrepresented parties is
context-dependent. The paramount concern is ensuring a fair hearing where the
unrepresented party will have the opportunity to fully present their case.
[11]
Counsel
for the Respondent argued that the Member’s apparent reluctance to entertain
evidence from some of the available witnesses had a principled basis. She
argued that the Member was appropriately attentive to the need for
administrative efficiency, to the potential relevance of the evidence, and to
the avoidance of repetition. She also referred to the Member’s early identification
at the hearing of the issues that were of concern to him. Because the proposed
witnesses had little, if any, relevant evidence to address the Member’s
specific concerns, their effective exclusion was said to be justified.
[12]
The
fundamental problem with the Respondent’s argument is that the Member’s narrow
characterization of relevance was wrong. After correctly stating that the
central issue before him was the genuineness of the marriage, the Member erred
by telling Mr. Kamtasingh that the testimony of others, which only
corroborated his evidence, would not be useful. The Member may well have had
only a few issues of concern, but the credibility of Mr. Kamtasingh was
obviously one of them. Corroborating evidence from other witnesses may have
been sufficient to rehabilitate Mr. Kamtasingh’s credibility and to displace
the Member’s other concerns. All of these witnesses had potentially relevant
evidence to give concerning the genuineness of the marriage, even if their
testimony was not “different” from Mr. Kamtasingh’s evidence. In effect,
what the Member did was predetermine the issue of credibility without having
heard the witnesses. This is contrary to the principle expressed by Justice
Eleanor Dawson in Ayele v. Canada (Minister of
Citizenship and Immigration) (2007), 2007 FC 126, 60 Imm. L. R. (3d) 197
at paras. 11-12 where she held:
11 Third, one can never rule on
the credibility of evidence that has not yet been heard. The presiding member
violated this principle when he stated that even if the witnesses corroborated
Mr. Ayele’s testimony that subsequent testimony would not be credible.
12 Fourth, the essence of
adjudication is the ability to keep an open mind until all evidence has been
heard. The reliability of evidence is to be determined in the light of all of
the evidence in a particular case. This is the reason why an adjudicator must
remain open to persuasion until all of the evidence and submissions are
received. Evidence, that at first blush may seem implausible, may later appear
plausible when set in the context of subsequent evidence. It is, at the least,
suggestive of an impermissibly closed mind to state that “there’s no point
calling the witness […] when the evidence is of no use and calling the witness
is futile”.
[13]
I
agree with counsel for the Respondent that the IAD has the right to limit
repetitive testimony, but not by effectively excluding witnesses who could
offer evidence going to the central issues of the case. The place to control
excessive or repetitive evidence on issues of controversy which are central or
determinative is generally not at the entrance to the witness box, but once the
witness is testifying – and even then the member must grant some latitude to
ensure that all important matters are covered. The IAD can, of course, limit
the scope of evidence by stipulating certain points that are not in dispute. In
a case like this one where the credibility of the Applicant is clearly in issue
and where the genuineness of a marriage is in doubt, the evidence of immediate
family and close acquaintances is highly relevant and should be heard without
reservation. Indeed, it is difficult to see how a matter such as this could be
fairly determined after only two hours of evidence, particularly where
Mr. Kamtasingh was self-represented and was initially intending to lead
evidence from several witnesses. This was a situation where the duty to allow Mr. Kamtasingh
to fully present his case was sacrificed for the desire for administrative
efficiency. That is not a permissible trade-off: see Singh v. Canada (Minister of
Employment and Immigration), [1985] 1 S.C.R. 177, [1985] S.C.J. No. 11 (QL)
(S.C.C.) at para. 70.
IV. Conclusion
[14]
The
IAD breached the duty of fairness owed to Mr. Kamtasingh and this matter
must be re-determined on the merits by a different decision-maker.
[15]
Neither
party proposed a question for certification and no issue of general importance
arises on this record.
JUDGMENT
THIS COURT ADJUDGES that this application is allowed with the matter to be
re-determined on the merits by a different decision-maker.
“ R. L. Barnes ”
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