Date: 20000907
Docket: IMM-5255-99
MONTREAL, QUEBEC, THIS 7TH DAY OF SEPTEMBER 2000
PRESENT: THE HONOURABLE MR. JUSTICE DENAULT
BETWEEN:
MOHAMED ABU TAHER
Applicant
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O R D E R
This application for judicial review is dismissed.
PIERRE DENAULT
Date: 20000907
Docket: IMM-5255-99
BETWEEN:
MOHAMED ABU TAHER
Applicant
AND
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DENAULT, J.:
[1] This is an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board which rejected the applicant's appeal against a decision of the Canadian High Commission in Singapore regarding the sponsorship of his second spouse, after the applicant had divorced his first wife.
[2] The applicant, a 42-year old Canadian citizen, was born in Bangladesh and was granted landing in Canada on March 9, 1987. Soon after, the applicant sponsored the application for permanent residence in Canada of his first wife and their three children. The applicant signed an undertaking to support them and on December 5, 1989, they arrived in Canada, where they were admitted as sponsored family members. These three children are now respectively 20, 18 and 16 years old. From the applicant's union with his first wife, two other children, now 9 and 8 years old, were born in Canada in 1990 and 1991.
[3] During the applicant's first wife's third pregnancy, which took place while she was still in Bangladesh, she began to have mental problems, which, at one point, became so acute that she could no longer take care of the children. The mental illness of the applicant's first wife was treated without success in Canada, until her departure from this country in May 1994. On September 24, 1996, the Quebec Superior Court rendered a judgment of divorce between the applicant and his first wife.
[4] On November 29, 1996, the applicant married the then 25-year old Nazmun Nahar Begum in Bangladesh ("Mrs. Nahar"). The applicant had not met with Mrs. Nahar before marrying her. Following the marriage ceremony, held at the bride's parents' home, relatives of both sides introduced Mrs. Nahar to the applicant. On December 4, 1996, the applicant left for Canada. On January 6, 1997, the applicant signed an undertaking of assistance in order to sponsor his second spouse.
[5] On April 5, 1997, the applicant's second wife filed an application for permanent residence in Canada. On April 15, 1997, the Ministère des relations avec les citoyens et de l'immigration du Québec sent a letter to the applicant which stated inter alia the following:
| Objet: Refus de votre demande d'engagement en faveur de Begum, Nazmun Nahar |
| La présente fait suite à la demande d'engagement que vous avez soumise en faveur de la personne ci-haut mentionnée. |
| Après une étude attentive de votre dossier, nous constatons à regret que vous n'avez pas respecté les obligations consenties en vertu de votre engagement en faveur de: |
| Taher Begum, Perzea; Taher, Akhtar Bakul; Taher, Shoyeal Ahmed; Taher, Foyaz Ahmed, signé le 28 mars 1988. |
| En effet, les personnes ci-dessus et/ou des membres de sa famille ont eu recours à la sécurité du revenu ("aide sociale"). En conséquence, en vertu de l'article 23b du Règlement sur la sélection des ressortissants étrangers, nous devons refuser votre demande d'engagement en faveur de la personne mentionnée en objet. |
[6] Prior to April 15, 1997, the applicant had left his work and had received approximately one year of unemployment benefits and his whole family received welfare benefits from 1991 to 1997. On November 25, 1997, the Second Secretary of the Visa Division of the Canadian High Commission in Singapore sent a letter to the applicant's second wife, which stated that she did not meet the requirements for immigration to Canada as a member of the family class "since your family member in Canada has failed to meet the legislative requirements of his province as a sponsor ...". She was then found to be a member of the class of persons who are, inadmissible to Canada pursuant to 19(2)(d) of the Immigration Act, 1976.
[7] On August 13, 1998, the Canadian High Commission in Singapore informed the applicant that the undertaking of assistance he had submitted in support of the application of his second wife for an immigrant visa application had been refused.
[8] On August 27, 1998, pursuant to section 77 of the Immigration Act, R.S.C. 1985, c.I-2 (the "Act"), the applicant filed a notice of appeal of this decision with the Appeal Division of the Immigration and Refugee Board. The relevant portions of section 77 of the Act read as follows:
| 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
(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.
|
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.
|
| (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.
[emphasis added]
|
(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.
[emphase ajoutée]
|
[9] Before the Appeal Division, the applicant admitted that the visa officer's decision was well founded in fact and in law, an admission he reiterated before this Court. The sole basis of his appeal, by virtue of paragraph 77(3)b) of the Act, was to determine if compassionate and humanitarian considerations existed which warranted the granting of special relief. In its decision, the Appeal Division dismissed the appeal, considering that "[t]he compassionate and humanitarian considerations exposed by the appellant were not sufficient ... to overcome the ground of inadmissibility".
[10] In his memorandum as well as at the hearing before the Court, the applicant submits that the Appeal Division failed to have regard to the totality of the evidence that was before it. More precisely, the applicant invokes that the Appeal Division ignored the cause and origin of the welfare payments made to the members of his family, the fact that he had reimbursed a portion of what is owed to the welfare and that he needs his wife to be with him in order not to impede but rather to increase his capacity of earning.
[11] The respondent argues on the other hand that the applicant has not rebutted the presumption that the Board considered all the evidence1.
[12] In my view, this application for judicial review cannot be granted.
[13] Counsel for the applicant elaborated at the hearing on the misfortunes of his client and forcefully argued that the Appeal Division had failed to acknowledge and analyze important facts which were raised before the Board such as the illness of one of his daughters, the difficulties he had with a son, and mainly his need of his second spouse to take care of the family while he would be working. In short, the applicant complains that the reasons provided by the Appeal Division are so insufficient as to render its decision unintelligible.
[14] While I agree that the Appeal Division could have been more specific in explaining how and why the compassionate and humanitarian considerations exposed by the appellant were not sufficient to overcome the ground of inadmissibility, it remains that it is quite possible to understand the basis of the decision2. It is trite law that a tribunal must be presumed to have considered all the evidence that was presented to it. Still, a tribunal is not obliged to mention in its reasons all the elements of evidence it has taken into account before rendering its decision. Furthermore, because certain evidence is not mentioned in the tribunal's reasons, it does not mean that such evidence was ignored.
[15] In the case at bar, the Appeal Division's reference to several important facts exposed by the applicant renders the decision intelligible: the tribunal was not satisfied of the existence of compassionate and humanitarian considerations that warrant the granting of the special relief sought by the applicant. I might have found otherwise, but this is not the test to be applied.
[16] Insofar as this Court has not been persuaded that its intervention is warranted, this application for judicial review will be dismissed. Neither counsel recommended certification of a serious question of general importance.
PIERRE DENAULT
Montreal, Quebec
September 7, 2000
__________________
1 See Woolaston v. M.E.I., [1973] R.C.S. 102 (S.C.C.); Florea v. M.E.I. (June 11, 1993), A-1307-91 (F.C.A.); Gui v. Canada (M.C.I.),[1993] F.C.J., no 1184 (F.C.T.D.) [Rouleau, J.]; Wai v. Canada (M.C.I.)(1996), 35 Imm. L.R. (2d) 173 (F.C.T.D.)[Heald J.]; Archila v. Canada (M.C.I.), [1999] F.C.J. no 1717 (F.C.T.D.)[Tremblay-Lamer J.], Harb v. Canada (M.C.I.),[1999] F.C.J. no 1244 (F.C.T.D.)[Pinard J.]; Shumanov v. Canada (M.C.I.), [1999] F.C.J. no 763 (F.C.T.D.)[Teitelbaum J.]; Lutete v. Canada (M.C.I.),[1999] F.C.J. no 420 (F.C.T.D.)[Blais J.].
2 Blanchard v. Control Data Canada Ltd.[1984]2 S.C.R. 476, at p.501.
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