Date: 20030218
Docket: IMM-1554-02
Neutral Citation: 2003 FCT193
Toronto, Ontario, Tuesday the 18th day of February, 2003
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
HARJIT SINGH MANN
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD"), dated March 20, 2002, wherein the IAD allowed the sponsorship application for permanent residence in Canada of the Respondent's wife, Narinder Kaur Mann.
- [2] On the Respondent's attempt to sponsor his wife, who is a citizen of India, under the family class sponsorship program, the Visa Officer in India determined that she did not qualify for family class sponsorship, as the Respondent and his wife fell into the prohibited degrees of relationship under the Hindu Marriage Act, 1955, as first cousins. Finding that the marriage was not legally permissible under the Indian legislation, it was not found to be valid for the purpose of s. 2(1) of the Immigration Regulations, 1978.
- [3] The Respondent appealed this decision to the IAD. The IAD found as a fact that, there is a custom in community to which the Respondent belongs which sanctioned marriage between first cousins. As a result, the IAD determined that the marriage was valid under the Hindu Marriage Act, and, accordingly, that the Visa Officer's refusal to grant permanent residence was not valid in law. The Applicant argues that the finding that a custom exists was made in error of law.
[4] It is agreed that the IAD correctly identified the issue before it as follows:
The question is whether the evidence provided by the appellant proves the existence of a custom governing both himself and the applicant, to the effect that first cousins are permitted to marry. (Decision, p.4)
[5] It is also agreed that, with respect to this evidentiary question, the answer has been provided by Justice Pratte inCanada (Minister of Employment and Immigration) v. Taggar [1989] 3 F.C. 576 (F.C.A.), where at paragraph 11 he states the following:
Under both the law of India and under our law customs must be clearly proved to exist and the onus of establishing them rests upon those who rely on their existence. [Footnotes deleted] [Emphasis added]
[6] With respect to Indian law as referred to by Justice Pratte, at paragraph 5 of Taggar he says as follows:
Under Indian law, a person who relies on custom must prove it by clear and unambiguous evidence since custom is a departure from ordinary law. [Emphasis added]
Thus, in the present case, the task for the IAD was to decide the quality of evidence required to prove the existence of a crucial fact, that is, the existence of a custom. In my opinion, to correctly apply Justice Pratte's decision in Taggar, the IAD was required to specifically find whether the evidence of the existence of a custom is "clear". In my opinion, the IAD was also required to specifically state the evidence which supports this finding if made.
[7] However, in the present case, by use of the following words, I find that the IAD did not correctly apply the law:
The panel agrees with the finding that, on a balance of probabilities, there is a custom in existence in India upon which the appellant may rely to validate his marriage under Indian law. [Emphasis Added].
As a result, on the crucial evidentiary issue before the IAD for determination, I find a reviewable error was made.
[8] Given the length of time the present case has been before the IAD and this Court for determination, and given that the evidentiary record before the IAD was not considered according to the correct legal test as found above, I find that the matter should be referred back for redetermination on directions to the member who decided the present case.
ORDER
Accordingly, the IAD's decision is set aside and the matter is referred back to IAD member R. Néron for redetermination on the following directions:
1. The reasons provided with respect to this Order be applied to the evidence in existence on the IAD record;
2. The admissibility and weight to be accorded to the evidence in existence on the record be redetermined after further argument;
3. Both the Applicant and Respondent be permitted to adduce further evidence respecting the custom under consideration in the present case;
4. Both the Applicant and Respondent be at liberty to make further argument; and
5. Member R. Néron decide the procedure towards carrying out this Order and Directions. In any event, the redetermination is to be completed within 90 days.
"Douglas R. Campbell"
_____________________________
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-1554-02
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
HARJIT SINGH MANN
Respondent
DATE OF HEARING: TUESDAY, FEBRUARY 18, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: TUESDAY, FEBRUARY 18, 2003
APPEARANCES BY: Mr. Jamie Todd
For the Applicant
Ms. Shoshana T. Green
For the Respondent
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General of Canada
For the Applicant
Shoshana T. Green
Green and Spiegel
390 Bay Street
Suite 2800
Toronto, Ontario
M5H 2Y2
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030218
Docket: IMM-1554-02
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
HARJIT SINGH MANN
Respondent
REASONS FOR ORDER
AND ORDER
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