Date: 20070516
Docket: IMM-6426-05
Citation: 2007 FC 527
Toronto, Ontario, May 16, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
KIRSTENA
KUSHIL NAIDU
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
for judicial review of a decision of the Immigration Appeal Division of the
Immigration and Refugee Board (the Board), dated September 16, 2005, wherein
the Board upheld a visa officer’s decision that the applicant could not sponsor
her husband because their marriage was not valid.
[2]
Kirstena Kusil Naidu,
the applicant, is a Canadian citizen who applied to sponsor her husband, an
Indian citizen. They were married in India on April 30, 2002.
[3]
According to section 2
of the Immigration and Refugee Protection Regulations, SOR/2002 -227,
(the Regulations), a marriage must be legally valid under the law of the
jurisdiction where it took place. The visa officer found that the applicant is
a Christian and, as such, could not be validly married under the Hindu
Marriage Act 1955 to her husband who is a Sikh.
[4]
The applicant appealed
the visa officer’s decision. At the Board hearing, the applicant made an
application to enter two documents into evidence post-hearing. The Board declined
to admit the post-hearing documents.
[5]
The Board noted that pursuant
to Rule 58(b) of the Immigration Appeal Division Rules, SOR/2002-230
(the IAD Rules), it may change a requirement of a rule but concluded that it
would not do so in this case because the applicant had ample notice that her
religion was an issue and because her explanation for failing to disclose the
documents earlier was completely inadequate. It also noted that the applicant
herself was primarily responsible for the late disclosure and would not be
prejudiced if the documents were not admitted.
[6]
After having dismissed
the applicant’s application to have the documents admitted into evidence, the
Board went on to consider whether the applicant had established on a balance of
probabilities that she is a Hindu (and therefore could have validly married the
applicant). It noted that both the applicant and her husband testified that the
applicant was Hindu and that, aside from the CAIPS notes, their testimony on
this point was not contradicted or undermined in any other way during the
hearing.
[7]
According to the CAIPS
notes, the applicant’s husband stated at the interview with the visa officer
that the applicant is a Christian. The Board noted that the CAIPS notes are not
sworn but are admissible and were overall temperate, detailed and clear. The
Board also noted and drew a negative inference from the fact that the applicant’s
parents did not testify.
[8]
The Board concluded
that the applicant had not established that she is Hindu or that the visa
officer was incorrect about her religion.
Pertinent Legislation
[9]
The relevant provision
of the Immigration and Refugee Protection Act, R.S.C. 2001, ch. 27, (the
Act), follows:
|
175. (1) The Immigration Appeal Division, in any
proceeding before it,
…
(b) is not bound by any legal
or technical rules of evidence; and
|
175. (1) Dans toute affaire dont elle est saisie, la Section d’appel de
l’immigration :
…
b) n’est pas liée par les règles légales ou techniques de
présentation de la preuve;
|
[10]
The relevant provisions
of the Rules follow:
|
30(3) Subject to subrule (4),
documents provided under this rule must be received by the Division and the
other party
(a) no later than 20 days before the
hearing; or
…
58. The Division may
(a) act on its own initiative, without a
party having to make an application or request to the Division;
(b) change a requirement of a rule;
(c) excuse a person from a requirement of a
rule; and
(d)
extend or shorten a time limit, before or after the time limit has passed.
|
30(3) Sous
réserve du paragraphe (4), tout document transmis selon la présente règle
doit être reçu par son destinataire au plus tard :
a)
soit vingt jours avant l'audience;
…
58. La Section peut :
a)
agir de sa propre initiative sans qu'une partie n'ait à lui présenter une
demande;
b)
modifier une exigence d'une règle;
c)
permettre à une partie de ne pas suivre une règle;
d) proroger ou abréger un délai avant
ou après son expiration.
|
Issues
[11]
This case raises two
issues:
1.
Did the Board breach of
duty of procedural fairness by not accepting into evidence the post-hearing
documents?
2.
Did the Board err by
concluding that the applicant had not established that she was Hindu?
Analysis
i)
Post-hearing
documents
[12]
I would like to recall
at the outset that the first issue is one of procedural fairness where no
standard of review applies.
The content of procedural
fairness goes to the manner in which the Minister went about making his
decision, whereas the standard of review is applied to the end product of his
deliberations.
C.U.P.E.
v. Ontario (Minister of Labour),
[2003] 1 S.C.R. 539
[13]
The applicant submits
that the Board breached the duty of fairness by not admitting the documents
into evidence and notes that subsection 175(1) of the Act gives the Board broad
discretion to receive evidence.
[14]
While I agree with the
Applicant that Subsection 175(1) of the Act gives the Board broad discretion to
receive various kinds of evidence, it does not replace the procedural rules
governing disclosure that are provided in the IAD Rules.
[15]
In this present case, the
Board recognized that pursuant to Rule 58(1), it may change a requirement of a
rule, however it declined to do so for very cogent reasons, i.e. that the applicant
had ample notice that her religion would be an issue in the appeal long before
the hearing and has been represented by counsel throughout. Further, the applicant’s
explanation for failing to produce the documents earlier is patently and
entirely inadequate.
[16]
Considering that the applicant
herself was principally responsible for the delay and after weighing of all the
surrounding facts, the Board declined to admit the post-hearing documents.
[17]
In my opinion, the
applicant has presented no compelling argument regarding how the duty of
procedural fairness owed to her has been breached by the Board’s decision not
to exercise the discretion provided to it in Rule 58(b).
ii) The Applicant’s Religion
[18]
The standard of review
for the second issue must be determined by the pragmatic and functional
approach. This involves consideration of
four factors: the presence or absence of a privative clause or statutory right
of appeal; the expertise of the tribunal relative to that of the reviewing
court on the issue in question; the purpose of the legislation in question, as
well as the purpose of the particular provision in question; and the nature of
the question (Dr. Q v. College of Physicians and Surgeons of British
Columbia, 2003 SCC 19).
[19]
The Act contains
neither a privative clause nor a statutory right of appeal and is therefore
neutral. The question of whether the applicant and the applicant are validly
married is one of mixed fact and law but the specific issue dealt with by the
Board in this case was one of pure fact, i.e. whether the applicant had proved
on the balance of probabilities that she is Hindu. The Board has more expertise
than the Court in making such a factual determination particularly as the
evidence was primarily testimonial. The purpose of the provisions relating to
sponsorship of spouses is to facilitate the reunification of families in Canada, as well as to ensure that only genuine family
relationships are supported. Such a polycentric purpose suggests more deference
should be given to the Board’s decision. On the other hand, a determination
regarding the validity of a marriage establishes an individual’s rights
vis-à-vis the state regarding sponsorship. Therefore, this factor suggests some
deference. Finally, the nature of the problem is factual demanding a higher
degree of deference. Weighing these factors, I conclude that the appropriate
standard of review for this issue is the standard of patently unreasonable.
[20]
The applicant alleges
the Board’s decision is flawed for two reasons: first, because it gave more
weight to the unsworn CAIPS notes than to the sworn testimony of the applicant
and her husband and second, because it drew a negative inference from the fact
that the applicant’s parents did not testify.
[21]
The respondent submits
that it was open to the Board to prefer the unsworn CAIPS notes over the
testimony of the applicant and her husband as the assessment of the weight of
evidence is a proper matter for the Board to decide. The respondent also noted
that the applicant’s husband’s testimony was vague, unresponsive and not
credible and pointed to a number of instances where the applicant’s husband
stated he could not remember what he said during the interview.
[22]
Subsection 175(1) the
Act provides that the Immigration Appeal Division is not bound by legal and
technical rules of evidence.
[23]
Although the rules of
evidence would general not permit a decision maker to give hearsay evidence
greater weight than uncontradicted sworn testimonial evidence, it is clear that
section 175(1)(b) was intended to allow the Immigration Appeal Division such
flexibility in evaluating evidence. The Board was entitled to give more weight
to the CAIPS notes and I find that it was not patently unreasonable for it to
do so here as the CAIPS notes are detailed and clear and the testimony of the
applicant’s husband was vague.
[24]
With respect to the
second error alleged by the applicant, she submits that the Court should follow
the Federal Court decision in Mui v. Minister of Citizenship and Immigration,
2003 FC 1020, wherein the Court held that conclusions relating to lack of
credibility may not be drawn from an absence of evidence. Mui was also
a sponsorship case wherein the Board made a negative inference from the fact
that the applicant and the applicant’s husband’s mother failed to testify as to
the genuine nature of the marriage even though they had allegedly played an
important role in the marriage.
[25]
The respondent submits
that it is well-established in the law of evidence that an adverse inference
can be made from a failure to bring forth a witness and refers to Wigmore on
Evidence as well as a number of personal injury cases.
[26]
According to Wigmore
on Evidence, the failure to produce the evidence on a particular person is
open to an inference against both parties, the particular strength of the
inference against either depending on the circumstances (Wigmore, Evidence
§288 (Chadbourn rev. 1979)).
[27]
Similarly The Law of
Evidence in Canada states that an unfavourable inference can be drawn when,
in the absence of an explanation, a party fails to call a witness who would
have knowledge of the facts and would be assumed to be willing to assist that
party (The Law of Evidence in Canada §6.312 (Butterworths Canada Ltd.:
Markham and Vancouver, 1999)).
[28]
While the evidence
rules referred to above are not specific to the immigration context, I am
satisfied that they can apply in the current case. The Court in Mui arrived
at a different conclusion by relying on jurisprudence from the refugee context
where it is an important principle that there is a presumption of truth that
whatever a claimant swears to is true and the truthfulness of a claimant’s
allegations cannot be rebutted through negative inferences. The case at hand is
not a refugee case and the Board was entitled to draw a negative inference from
the fact that neither of the applicant’s parents testified for her. Clearly the
applicant’s parents have knowledge of the applicant’s religion and there is no
reason to believe that her parents would be unwilling to assist her. Thus, it
was not patently unreasonable for the Board to draw a negative inference.
[29]
Overall, the applicant has failed
to demonstrate that the decision was made without regard to the evidence and
there is no reason for the Court to intervene.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is
dismissed.
“Danièle
Tremblay-Lamer”
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