Date: 19990121
Docket: IMM-4441-97
BETWEEN:
JASPAL KAUR GILL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.
[1] This is an application for judicial review of the decision of the Immigration and Refugee Board (Appeal Division) dated October 8, 1997, which dismissed the applicant's appeal as it relates to the sponsorship of the applicant's two brothers. The applicant seeks a writ of certiorari quashing the decision dated October 8, 1997, and a writ of mandamus directing the presiding Appeal Division for re-hearing before a different panel.
[2] On September 27, 1990, the applicant filed a sponsorship application and sought to sponsor her mother, Blawant Kaur Sandhu, and her two brothers, Avtar Singh Sandhu and Jagtar Singh Sandhu, who applied for permanent residence in Canada as members of the family class. In the application, the Applicant's brothers were declared to be single, and there was no request to sponsor her father. Her father passed away in August 1993.
[3] The authenticity of the death certificate was questioned and the Canadian High Commission conducted a field investigation. In the course of the field investigation, the investigating officer asked people in the applicant's village whether the applicant's father had passed away and whether her brothers were married. On April 3, 1995, the applicant's mother and two brothers were interviewed by a visa officer during which they discussed the villagers' statements to the investigating officer that the two brothers were married. They all denied such facts. The visa officer refused the application for permanent residence of the applicant's mother and two brothers by letter dated June 22, 1995 on the basis that the applicant's mother had provided false information regarding the marital status of the two brothers.
[4] On September 1, 1995, the applicant filed a Notice of Appeal challenging the visa officer's decision, which was heard on July 10, 1997. In support of their appeal, the applicant filed sworn affidavits from the individuals who had been interviewed by the investigating officer wherein they retracted their original statements and explained that "they had been joking with the investigating officer". The applicant also filed two affidavits, one from the village Sarpanch, (an elected official and respected village elder, similar to a mayor, I am told) and another from a local Member of Parliament in India, whereby they deposed to the fact that the applicant's brothers were not married. By decision dated October 8, 1997, the appeal was allowed with respect to the applicant's mother and dismissed with respect to the two brothers.
Decision of the Appeal Division of the Immigration and Refugee Board
[5] The Board allowed the appeal with respect to the applicant's mother under section 77(3)(a) of the Immigration Act. However, the Board dismissed the appeal as it relates to the applicant's brothers for the reasons that the evidence failed to show, on a balance of probabilities, that the brothers qualified as members of the family class, and in addition, they did not submit any information to satisfy the requirements under section 9(3) of the Immigration Act. The Board concluded that the appeal, as it relates to the applicant's brothers, Avtar Singh Sandhu and Jagtar Singh Sandhu, is dismissed for lack of jurisdiction.
[6] Section 9(3) of the Immigration Act states:
| |
Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations. |
|
Applicant's Position
[7] The applicant argues that the presiding member of the Appeal Division failed to consider the evidence before her and improperly weighed the evidence. More specifically, it is submitted that the presiding member erred in assigning more weight to the unsworn statements of the three villagers obtained by the investigating officer than to the sworn affidavits in which they clearly retracted their previous statements. The presiding member also erred in giving more weight to the investigating officer's statements than she did to the sworn affidavits of the village Sarpanch and the local Member of Parliament. The applicant argues that this is contrary to the general principle of law that sworn evidence is to be given more weight than unsworn evidence, and that sworn evidence is more credible than unsworn evidence. In this respect it is submitted that the presiding member erred in finding that the affidavits filed by the applicant's relatives were of limited probative value because they were motivated by the applicant's best interest. Affidavit evidence cannot be minimized for this reason alone as most evidence customarily submitted to the Board would then be rejected. Further, there was no evidence to suggest that the affiants' motives were questionable, and thus it was not open to the presiding member to find that their testimony was of little probative value.
[8] Also, the applicant submits in her written submissions, that the presiding member's decision to reject the sworn evidence amounts to a reasonable apprehension of bias and that this is a reviewable error of law. It is submitted that the presiding member committed the same error as that committed by the adjudicator in Gonzales v. Canada (M.E.I.)(1991) 14 Imm.L.R. (2d) 51, in that she exhibited a reasonable apprehension of bias vis-à-vis the evidence of all witnesses who are relatives of the applicant's for permanent residence.
Respondent's Position
[9] The respondent submits that the applicant's first argument essentially relates to the weighing of evidence by the tribunal, which is not a proper basis for judicial intervention: (Hoang v. M.E.I. (1991), 13 Imm.L.R. (2d) 35 (F.C.A.).) The Board's reasons indicate that the presiding member did not ignore or give undue weight to the applicant's evidence, but carefully weighed the evidence and determined, based on all of the evidence, that the two brothers had failed to persuade her that they were members of the family class. Also, it is submitted that it was open to the Board to accept the evidence of the investigating officer based on the villagers' original and unrehearsed statements as the applicant failed to provide a satisfactory explanation for the villagers' original statements.
[10] The respondent also submits that Gonzalez, supra, is distinguishable from the case at bar. In Gonzalez, the issue was one of admission of evidence where in this case the issue relates to the weight of the evidence, not its admissibility. In the case at bar, it is submitted that the Board considered the evidence in question and properly weighed the affidavit evidence adduced by the applicant along with the other evidence before it.
[11] The applicant raises one serious issue: Did the presiding member fail to consider the totality of the evidence before her or improperly weigh the evidence before her?
[12] The applicant submits that the Appeal Division failed to consider the whole of the evidence before her or she improperly weighed the evidence. It is submitted that the "refusal of a tribunal to receive or give appropriate weight to evidence which corroborates a matter at issue may amount to an error of law". The applicant relies on Gonzalez, supra, for this proposition.
[13] In Gonzalez, supra,the Federal Court of Appeal considered two of the applicant's arguments: whether the exclusion of a potential witness amounts to a reasonable apprehension of bias, and whether the rejection of evidence for unjustified reasons amounts to an error of law. The tribunal in Gonzalez had rejected the evidence as "virtually meaningless documents" for the reasons that they did not pertain to the applicant's claim. Justice Desjardins, writing for the Court, found that all documents were relevant to the issues before the tribunal, but did not further qualify the error.
[14] In the present case, the presiding member gave little probative value to the affidavit evidence submitted by the applicant. The applicant submitted six affidavits at the hearing before the Appeal Division. Three from the villagers who originally made statements to the investigating officers; two from the residents from the applicant's village, including one from the village Sarpanch; one from the applicant's mother swearing to the fact that her sons are unmarried. The applicant also adduced two affidavits from the brothers' uncle and aunt stating that the applicant's brothers were unmarried. Another letter from an Indian Member of Parliament also stating that the brother Jagtar was not married.
[15] From a reading of the presiding member's decision, it is obvious that she considered all the affidavit evidence but found that the affidavits from the three original villagers did not assist her as they contradicted their original statements and did not depose to the marital status of both brothers, while their original statements to the investigating officer referred to both brothers being married in two of the cases and of one brother being married by the third. The presiding member also weighed the evidence and determined that the three affidavits should be given little weight as they did not sufficiently explain the circumstances under which the original statements were made. The presiding member thought, as was submitted by the Minister, that the more truthful evidence would come from spontaneous and unrehearsed responses to the original inquiries from the investigating officer. The member accepted the investigating officer's evidence.
[16] The presiding member also found that the other affidavits were of limited probative value "since they came from relatives who have lived in Canada and who are clearly motivated to say what is in the applicant's best interests to assist their application". The presiding member had the same rationale for giving the Sarpanch's affidavit and the MP's letter limited probative value. The member reasoned that these affidavits had been obtained after the refusal and had limited value in view of the comparison to the spontaneous statements obtained in the earlier investigation.
[17] The presiding member concluded that the best evidence available is that which was submitted by the visa officer in the sworn Statutory Declaration and the unrehearsed statements of the three independent villagers, as the evidence submitted to refute it is self-serving and contradictory, and the applicant failed to provide a satisfactory explanation for the statements made by the villagers.
[18] It is clear from the decision that the presiding member considered all the evidence submitted by the applicant but gave it little weight and provided clear reasons for doing so. These reasons, especially the lack of a rational explanation for the villagers recanting their original statements tend to justify the member's decision. While a different person may have had a different opinion as to the weight of certain evidence, this Court cannot intervene merely to substitute its opinion.
[19] In the case of Hoang, supra, at page 38, Mr. Justice MacGuigan, in speaking of an appeal from a decision of the Immigration Appeal Board, as is the case at bar, states:
| |
The assessment of the weight of the evidence is a proper matter for decision by the Board and is not subject to review by this Court. |
|
[20] I would state that although the Court should not review the assessment of the weight given to the evidence by the Board as it is within the jurisdiction of the Board, I am satisfied that if it appears from the evidence that the Board's decision is totally unreasonable after weighing of the evidence, the Court would be permitted to intervene.
[21] As I have said, I am satisfied that the presiding member considered all of the evidence and I cannot conclude that her decision is unreasonable.
[22] The applicant also relied on Gonzalez, supra, in support of the written argument that the presiding member's decision to minimize or reject sworn evidence adduced by the applicant's relatives amounts to a reasonable apprehension of bias, a reviewable error of law.
[23] In Gonzalez, supra, Justice Desjardins states the following at page 54 and 55:
| |
The applicant submits that the above comments raise a reasonable apprehension of bias on the part of the tribunal vis-à-vis the evidence of all witnesses who are refugee claimants and upon whose evidence the applicant placed reliance. On account of this, the decision of the tribunal is flawed and tainted by the appearance that the applicant was denied procedural fairness. The tribunal, says the applicant, was predisposed to disbelieve the evidence of any refugee claimant who would testify on behalf of another because of its perception that such an individual's testimony would be wholly unreliable because of some vested interest in such a person to provide a "one-side perspective" of a given situation. In the case at bar, the apprehension of bias was particularly serious int hat the applicant's father, whose difficulties in Uruguay are at the very root of the applicant's fear of persecution, is also a refugee claimant and so one might conclude on the basis of the comments by the tribunal that the members were inclined to disbelieve what he had to say be reason only of his status in Canada as a refugee claimant. The same, submits the applicant, can be said about the tribunal's attitude towards the evidence of the applicant and of the sworn testimony of the applicant's brother as contained in the transcripts of his hearing. The fact that the tribunal chose to disbelieve all of the evidence of the applicant and of her father reinforces the apprehension of bias demonstrated by the tribunal's attitude. |
|
| |
I agree with the applicant's position. A reasonable apprehension of bias, perhaps even evidence of actual bias, can be drawn from the words quoted with the result that they vitiate the decision. A refugee claimant cannot be excluded as a potential witness simply because he is making a claim himself. His testimony is admissible, subject to the assessment of credibility by the competent tribunal. |
|
[24] I cannot accept the applicant's submission. As submitted by the respondent, in Gonzalez, supra, the Court found that the tribunal's refusal to accept evidence amounted to what may be considered a reasonable apprehension of bias, whereas in the present case, the tribunal did not find the evidence non-admissible. The evidence was admitted and considered by the Board but rejected for the clear reasons given in the panel member's decision.
[25] In the present case, the tribunal merely found that the applicant's evidence had little value in comparison to other evidence. In the circumstances of this case, I am not convinced that the tribunal's comments or decision in the circumstances of this case display what may be reasonable apprehension of bias towards the applicant.
[26] The application for judicial review is denied. Neither party submitted a question for certification.
"Max M. Teitelbaum"
Judge
TORONTO, ONTARIO
January 21, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4441-97
| STYLE OF CAUSE: JASPAL KAUR GILL |
- and -
| THE MINISTER OF CITIZENSHIP AND |
IMMIGRATION
DATE OF HEARING: WEDNESDAY, JANUARY 20, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: TEITELBAUM, J.
DATED: THURSDAY, JANUARY 21, 1999
APPEARANCES: Mr. Mendel M. Green
For the Applicant
Mr. Godwin Friday
For the Respondent
SOLICITORS OF RECORD: Green & Spiegel
Barristers & Solicitors
121 King Street West
Suite 2200
Toronto, Ontario
M5H 3T9
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990121
Docket: IMM-4441-97
Between:
JASPAL KAUR GILL
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
Email this Content