Date: 20030530
Docket: IMM-4223-02
Citation: 2003 FCT 685
Ottawa, Ontario, this 30th day of May, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
DEONARINE JAGLAL
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "Appeal Division"), dated August 16, 2002, dismissing the applicant's appeal for lack of jurisdiction. At issue in this application is whether the Appeal Division ignored evidence in determining that the applicant's spouse entered into their marriage primarily for purpose of gaining admission to Canada and lacked the intention to reside permanently with him.
FACTS
[2] The applicant is a permanent resident of Canada who married his current wife, a citizen of Trinidad and Tobago, on July 21, 1998 in Trinidad. He is now sponsoring her application for permanent residence. This is the second marriage for both the applicant and his wife, Ms. Jasmine Jaglal (her maiden name was Bassant and she will be referred to as Ms. Bassant throughout these reasons for clarity's sake). Because the marital history of both individuals is relevant in this case, that history must be briefly set out in these reasons.
[3] The applicant was born in Trinidad and first came to Canada in 1988 as a visitor. After his visitor's visa expired, the applicant made a refugee claim in an attempt to remain in Canada. His claim was refused and after he failed to leave Canada voluntarily, a deportation order was issued against him in 1992. Before the order was effected the applicant married his first wife, Ms. Nadya Eisenblaetter, in Toronto on January 26, 1993 and she sponsored his application for permanent residence. After the deportation order was enforced in 1993, the applicant resided in Trinidad while his application was processed. He returned to Canada in March 1996 once his application was approved and resided with his first wife until they separated in January 1997. The applicant filed for divorce and it was finalized in March 1998.
[4] Ms. Bassant was also born in Trinidad and was married there to Mr. Andrew Dookhoo on September 6, 1981. Mr. Dookhoo came to Canada in early 1988 and Ms. Bassant soon followed, entering Canada on May 8, 1988 as a visitor along with the couple's daughter. After her visitor status expired, she submitted a refugee claim that was ultimately unsuccessful. The couple had a second daughter who was born in Canada on May 11, 1989, but then separated in 1991. Ms. Bassant began to receive social assistance after the separation, but was arrested on July 21, 1993 when immigration officials raided a factory where she was working without authorization. Ms. Bassant was deported to Trinidad and Tobago on August 6, 1993. Prior to her departure, Mr. Dookhoo commenced a divorce action against her in Canada. It was finalized in 1994 after both Ms. Bassant and Mr. Dookhoo had returned to Trinidad.
[5] The applicant and Ms. Bassant met for the first time in 1992 in Toronto through mutual friends. No romantic relationship began at that time, but the two became friends. While the applicant was living in Trinidad from 1993 to 1996, he and Ms. Bassant met occasionally. After separating from his first wife, the applicant returned to Trinidad several times and stayed with Ms. Bassant. On July 21, 1998, the two were married in Trinidad and he agreed to sponsor her application for permanent residence.
[6] Ms. Bassant was interviewed by a visa officer on May 24, 2001 at the Canadian High Commission in Port of Spain, Trinidad. She presented photographs, cards and telephone records to help establish that her marriage was genuine. The visa officer was not satisfied with the evidence and gave Ms. Bassant two additional months to submit evidence, but none was received. On April 12, 2001, the applicant was mailed a Relationship Questionnaire, but a completed copy was never returned to the Canadian High Commission in Port of Spain. The application was refused on September 7, 2001. In a letter to Ms. Bassant, the visa officer stated that there was "little evidence of communication to establish your relationship" and refused the application pursuant to subsection 4(3) of the Immigration Regulations, 1978, SOR/78-172:
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.
[7] The applicant appealed the visa officer's decision to the Appeal Division pursuant to section 77 of the Act:
Where sponsored applications for landing may be refused
77. (1) Where a person has sponsored an application for landing made by a member of the family class, an immigration officer or a visa officer, as the case may be, may refuse to approve the application on the grounds that
(a) the person who sponsored the application does not meet the requirements of the regulations respecting persons who sponsor applications for landing, or
Rejet des demandes d'établissement parrainées
77. (1) L'agent d'immigration ou l'agent des visas, selon le cas, peut rejeter une demande parrainée d'établissement présentée par un parent pour l'un ou l'autre des motifs suivants - dont doit être alors informé le répondant_:
a) le répondant ne remplit pas les conditions fixées par les règlements;
b) le parent ne remplit pas les conditions fixées par la présente loi et ses règlements.
(b) the member of the family class does not meet the requirements of this Act or the regulations,
and the person who sponsored the application shall be informed of the reasons for the refusal.
[...]
Appeals by sponsors
77. (3) Subject to subsections (3.01) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
[...]
Appel interjeté par un répondant
77. (3) S'il est citoyen canadien ou résident permanent, le répondant peut, sous réserve des paragraphes (3.01) et (3.1), en appeler devant la section d'appel en invoquant les moyens suivants_:
a) question de droit, de fait ou mixte;
b) raisons d'ordre humanitaire justifiant l'octroi d'une mesure spéciale.
[8] The primary issue before the Appeal Division was whether the applicant's wife qualified as a member of the family class. If she did not, then the Appeal Division would lack the jurisdiction to hear the appeal under subsection 77(3). To establish the genuineness of the relationship, the applicant presented additional evidence in the form of greeting cards and phone
records showing communication between himself and Ms. Bassant, and testified at the Appeal
Division hearing. During his testimony, he stated that no additional evidence was tendered by Ms. Bassant in response to the visa officer's request because she felt she had done enough and had no further evidence to submit. He also explained that he had not returned the Relationship Questionnaire because he never received it in the mail.
[9] The Appeal Division found Ms. Bassant had entered into the marriage primarily for purpose of gaining admission to Canada. In its decision, the panel stated that the "evidence indicates that [Ms. Bassant] has had an ongoing interest in coming to Canada for a better life since 1988" and that she had no marital interest in the applicant until he obtained his permanent resident status in 1996. The Appeal Division specifically noted the lack of correspondence or telephone records for 1997, the time during which the romantic relationship was in its formative state.
[10] The Appeal Division was also not convinced, on the balance of probabilities, that Ms. Bassant intended to reside permanently with the applicant when she entered into marriage with him. With respect to the phone records that post-dated the marriage, the Board stated:
No records of telephone calls placed by [Ms. Bassant] to her husband's home telephone number in Canada after their marriage were produced. The telephone records of calls made by the appellant to [Ms. Bassant] in Port of Spain after their marriage are dated post refusal from November 25, 2001.
The Appeal Division also noted there was no evidence of financial support being supplied by the applicant to Ms. Bassant after their marriage and that the applicant had other reasons to return to Trinidad as his parents, siblings and a number of friends reside there. The Appeal Division concluded the applicant was not a credible witness and was not persuaded that he had resided with the applicant on his return trips to Trinidad. Accordingly, the appeal was dismissed for lack of jurisdiction.
ANALYSIS
[11] The applicant submits the Appeal Division ignored critical evidence in making its determination. Specifically, the applicant alleges the Appeal Division ignored the additional evidence he submitted showing the parties remained in contact after their marriage and even after the initial refusal by the visa officer. It is argued that they would not have done so if the marriage was not genuine. The applicant placed particular emphasis on the greeting cards he produced at the hearing, which were not referred to by the panel in its decision. The applicant also contends the Appeal Division's findings with respect to credibility are unsupported by reasons.
[12] The respondent submits that the Appeal Division's findings were open to it based on the evidence and the applicant is now arguing that, for a redistribution of the weight, the Appeal Division accorded to the various pieces of evidence. Further, it is argued that the Appeal Division did not err simply because it did not specifically reference the greeting cards in its reasons.
[13] While framed in terms of jurisdiction, the issue in this case is ultimately a question of fact as to whether the applicant's marriage is a genuine one. This is a "jurisdictional fact", which is subject to the same standard of review as other questions of fact. By finding the marriage was entered into primarily to gain admission to Canada, the Appeal Division excluded the applicant's wife from the family class. Given the fact driven nature of the decision and the Appeal Division's access to viva voce evidence, its decisions in this area are subject to a high degree of judicial deference: Satinder v. Canada (Minister of Citizenship and Immigration), 205 F.T.R. 102, 2001 FCT 504. As Martineau J. stated recently in Singh v. Canada (Minister of Citizenship and Immigration), 2002 FCT 347:
The standard of judicial deference that applies to findings of fact and to the weight given to the evidence by the Appeal Division is quite high. Unless the contrary is shown, the Appeal Division is assumed to have considered all the evidence presented to it. The Appeal Division's decision in this regard must be interpreted as a whole and it should not be subject to microscopic examination. Accordingly, the reviewing Court should refuse to interfere with decisions which assess credibility, provided that the explanations given are rational or reasonable, or that the evidence on the record permits the Appeal Division to reach, as the case may be, a negative inference as to the credibility of an applicant or a witness.
[14] There were 63 pages of generic greeting cards received by the applicant from Ms. Bassant introduced in evidence before the Appeal Division. These cards were sent over an unspecified time period on special occasions such as Easter, Christmas, Birthdays, Wedding Anniversaries and Valentine's Day. These cards frequently contained short messages of love expressed by Ms. Bassant for the applicant. There was no other correspondence from Ms. Bassant to the applicant introduced before the Appeal Division. The Appeal Division did not refer to the greeting cards in its decision, but neither did the applicant's counsel at the hearing before the Appeal Division during the examination of the applicant in chief. In the final submission at the Appeal Division hearing, the applicant's counsel did not read any of the greeting cards to the panel and made only a fleeting reference to the cards in final submission. If the applicant did not rely on the greeting cards by questioning the applicant during the examination in chief, and by not taking the Appeal Division to the cards in any detail during closing submissions, the applicant cannot now fault the Appeal Division for failing to specifically refer to this evidence in its reasons for decision. The Court was referred to a principle of law that if a particular document or piece of evidence is rejected, the applicant should be advised of the reasons why, especially when the document is a piece of evidence supports the applicant's position. See Wynter v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1107 per Tietelbaum J. at paragraphs 38 and 39.
At the same time it is clear that the Appeal Division need not mention each and every one of the documents entered in evidence before it. As Hugessen J.A. (as he then was) held in Florea v. Minister of Employment and Immigration, A-1307-91:
The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, the tribunal is assumed to have weighed and considered all of the evidence presented to it unless the contrary is shown. As the tribunal's findings are supported by the evidence, the appeal will be dismissed.
Failing to explicitly mention evidence of this nature in a decision is not in itself a reviewable error: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). While these cards were given great emphasis by counsel before this Court, these same cards were virtually ignored by the applicant's counsel at the hearing before the Appeal Division. Moreover, when the visa officer asked for further evidence such as correspondence between the couple, these greeting cards were not produced and obviously not considered significant. Accordingly, the Court cannot fault the Appeal Division for failing to refer to these greeting cards. The Court cannot set aside the decision because the applicant's previous representative failed to put emphasis on these cards. In the Court's opinion, the only recourse is for the applicant to re-sponsor his wife on the ground that these greeting cards, in the opinion of counsel for the applicant, constitute relevant and probative evidence which mistakenly were not presented to the visa officer, and which should have been emphasized before the Appeal Division.
[15] The Act placed an evidentiary burden upon the applicant and his wife to demonstrate the genuineness of their marriage: Tran v. Canada (Minister of Citizenship and Immigration), 214 F.T.R. 245, 2001 FCT 1255. Neither the visa officer nor the Appeal Division were satisfied that the applicant and his wife had met that burden. This conclusion was a reasonable one, and in the absence of a reviewable error there is no basis upon which it can be impugned.
[16] The Appeal Division set out several reasons for rejecting the applicant's evidence as not satisfying the burden, including previous history of the applicant and his wife, the lack of correspondence and telephone records during the material time, the lack of financial support, and ulterior reasons for return trips to Trinidad. After setting out these reasons, the Appeal Division found that the applicant was not credible. In the opinion of the Court, the Appeal Division satisfied its requirement to provide reasons for its credibility finding. By providing its analysis and reasons, the Appeal Division satisfied its obligation to specify the reasons for rejecting the applicant's evidence as credible.
[17] If the applicant and his wife in Trinidad had a genuine marriage, they had to satisfy either the visa officer or the Appeal Division. They failed to do so. The applicant's current counsel
may advise them to apply again on the basis of the greeting cards, which the applicant's counsel contends are important and probative evidence not previously before the visa officer. For this reason, the couple could be reconsidered.
[18] Neither party proposed a question for certification. The Court agrees that this case does not raise a question which should be certified.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Michael A. Kelen"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4223-02
STYLE OF CAUSE: DEONARINE JAGLAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, MAY 13, 2003
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE MICHAEL KELEN
DATED: FRIDAY, MAY 30, 2003
APPEARANCES BY: Mr. Osborne Barnwell
For the Applicant
Ms. Mielka Visnic
For the Respondent
SOLICITORS OF RECORD: Osborne Barnwell
Hinkson, Sachak, McLeod & Barnwell
Barristers and Solicitors
277 Richmond Street West
Toronto, Ontario
M5V 1X1
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020530
Docket: IMM-4223-02
BETWEEN:
DEONARINE JAGLAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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