Date: 19990428
Docket: IMM-5367-97
BETWEEN:
SANTOSH KUMARI GURBEK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of Immigration Officer C.A. Wannamaker (the "Officer"), in a letter dated 28 July 1997 and communicated to Ms. Gurbek (the "Applicant") in December 1997, wherein her application for an exemption from subsection 9(1) of the Immigration Act ,1 due to humanitarian and compassionate considerations, was denied.
[2] The Applicant, a citizen of India, arrived in Canada on July 19, 1988. Her claim for refugee status was denied as it was determined she did not have a credible basis to be a Convention refugee. Her application for leave to the Federal Court was dismissed 3 March 1992.
[3] She met her current husband, a Canadian citizen in October 1992. They were married on 5 February 1995, in Orleans, Ontario, shortly after the death of her father. Her first husband, with whom she had two children, divorced her in 1983, in India. Her third child, the product of a rape in India, was born in Canada on 6 October 1988. It was the rape that led to her departure from India.
[4] She has been living in Canada since 1988. She states in her affidavit that she informed the Officer of this fact along with the fact that she had a Canadian born child. She also affirms that she is currently employed and has not been on Welfare since 1993.2 Her children were raised in Canada and are used to the Canadian way of life. Her two brothers, her two sisters and her mother are all Canadian citizens.3
[5] The Officer"s notes indicate that the reason she found there to be no humanitarian or compassionate considerations was the lack of bona fides of the marriage to her present husband.4
[6] In Shah v. MEI, the Federal Court of Appeal decided that the onus was entirely on the Applicant to establish her case and convince the Officer that exceptional circumstances existed. The Officer had no duty to inform the Applicant of the weaknesses of her case and was not even required to give reasons: "In the case of perceived contradictions, however, the failure to draw them specifically to the applicant's attention may go to the weight that should later be attached to them but does not affect the fairness of the decision." 5
[7] The Officer noted a large number of inconsistencies between the Applicant"s evidence and that of her husband, which remain unanswered, even after the explanation provided by the Applicant. In my opinion, there was enough factual basis for the Officer to conclude that the Applicant and her husband were not parties to a bona fide marriage.
[8] On the other hand, the Applicant further submits that the Officer failed to consider alternative grounds for her application. In her affidavit, upon which she was not cross-examined by the Respondent, the Applicant affirms that she informed the Officer of other possible H & C grounds. This fact is confirmed by the tribunal record.6 However, the Officer"s conclusion is based exclusively on the marriage issue. For instance, there is no mention of her children or the fact that they have been raised in Canada, nor is there mention of her employment and the fact that so many immediate family members are Canadian citizens. The Officer chose to focus on the bona fides of the marriage, to the exclusion of the other considerations and as such, in my opinion, she fettered her discretion.
[9] For these reasons, the application for judicial review is allowed. The matter is returned to Officer C.A. Wannamaker for reconsideration.
"Danièle Tremblay-Lamer"
Judge
TORONTO, ONTARIO
April 28, 1999.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5367-98
| STYLE OF CAUSE: SANTOSH KUMARI GURBEK |
and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, APRIL 27, 1999
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR ORDER BY: TREMBLAY-LAMER J. |
DATED: WEDNESDAY, APRIL 28, 1999
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Ave. E.
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990428
Docket: IMM-5367-98
Between:
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. I-2.
2 (Sworn 14 June 1988), Applicant"s Record at 5-11, at para 25.
3 Ibid. at para 14.
4 Applicant"s Record at 14-24.
5 Shah v. Canada (MEI) (1994), 170 N.R. 238 (F.C.A.).
6 "Request for Consideration Under 114(2)" (6 June 1997), signed by C.A. Wannamaker, detailing the other considerations raised by the Applicant, in Tribunal Record at 425-27.
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