IMM-1730-96
B E T W E E N:
MALIK HAMID ZAMAN
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON, J.:
These reasons arise out of an application for judicial review of a decision of a supervisor at a Canada Immigration Centre in Mississauga, Ontario, which decision is dated the 6th of May, 1996. The substance of the decision is in following terms:
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This refers to your application pursuant to subsection 114(2) of the Immigration Act for an exemption from subsection (9)(1) of the Immigration Act to have an application for permanent residence processed from within Canada, and to the earlier decision on February 19, 1994 granting you approval in principle. |
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Due to subsequent information received, the circumstances of your case have again been carefully reviewed. As a result of this review, your marriage is no longer believed to be genuine. The earlier decision granting you approval in principle is therefore cancelled and your Minister's Permit will not be extended. |
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It is worthy of note that the application for judicial review relates only to the cancellation of the approval in principle to entertain an application for landing from within Canada and does not encompass the portion of the decision to the effect that the applicant's Minister's Permit would not be extended.
The applicant is a citizen of Pakistan. He arrived in Canada in November of 1991 and unsuccessfully sought Convention refugee status. He married a Canadian citizen in April of 1993. The following month, his spouse filed a sponsorship application and the applicant filed his application for permanent residence in Canada and for exemption from the requirement that such an application must, except in exceptional circumstances, be filed from outside Canada.
Early in January 1994, the applicant and his spouse were interviewed. As a result of that interview, a conclusion was reached that the marriage of the applicant and his spouse was bona fide, which is to say that it was not entered into primarily for the purpose of gaining admission to Canada. In the result, the approval in principle for landing from within Canada earlier referred to was granted in February of 1994. Further steps were taken to process the application.
The applicant was issued an employment authorization and established a business as an immigration consultant. By reason of the nature of his business, and on the basis of the continuing processing of his application for landing, he was in regular contact with officials at Immigration Canada and Human Resources Canada. On the basis of those contacts and other communications, some officials in the respondent's Ministry had second thoughts about the bona fides of the applicant's marriage. In the result, an unannounced home visit was made to the home of the applicant and his spouse in December of 1995. The results of interviews of the applicant and his spouse and observations made during the home visit confirmed the doubts of the officers conducting the visit. The decision here under review followed.
The issues arising on this application for judicial review can be briefly summarized as follows: first is the issue of the appropriate weight to be afforded to contradictory affidavit evidence as to what transpired during the home visit; second is whether or not a reviewable error was committed in failing to provide the applicant with an opportunity to respond to "extrinsic evidence" on which the decision-maker is alleged to have relied in making the decision under review; and third is the issue of whether there existed a reasonable apprehension of bias on the part of the decision maker by reason of alleged over-zealousness on the part of certain officials in the respondent's department in pursuing their investigations.
The applicant filed an affidavit on this application for judicial review. Annexed to that affidavit as exhibits were two further affidavits, one of the applicant's spouse and the second of a business client of the applicant. Madame Justice Reed commented on this practice in 594872 Ontario Inc. et al. v. Minister of National Revenue (No. 2)1 where at pages 219 and 220 she wrote:
| The Sebold affidavit which is produced as an attachment to Mr. Kimball's affidavit has the same status as any other attachment to an affidavit. It does not have an independent status as an affidavit served in these proceedings on which cross-examination pursuant to Rule 332.1 applies. Counsel for the applicants argues that if there is no obligation on the respondent to produce Mr. Sebold then a party can always shield an affiant from cross-examination by placing the affidavit in evidence as an attachment to a purely formal affidavit which says nothing and is signed by someone having minimal real knowledge of the issues. In my view, this argument is not persuasive. If such a practice were adopted it would clearly result in an affidavit which had little or no weight. |
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The applicant's affidavit is not "purely formal" and is sworn by a person having extensive knowledge of the issues in this matter. Thus, his affidavit cannot be said to have "little or no weight" on the other hand, the applicant has effectively shielded the affiants of the two affidavits annexed to his affidavit from cross-examination. In the circumstances, I am not prepared to accord those affidavits any weight in this matter. Thus, as to what transpired at the home visit and on certain other aspects of this matter, the respondent's affidavit evidence stands essentially uncontradicted, save for brief paragraphs in the applicant's own affidavit.
In Shah vs. Minister of Employment and Immigration2, Mr. Justice Hugessen provided the following guidance with respect to the nature of decisions such as that here under review and the extent to which they are reviewable by this Court. He stated:
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The decision itself is wholly a matter of judgment and discretion and the law gives the applicant no right to any particular outcome. In this respect, it differs from many other decisions, e.g. by a visa officer dealing by a sponsored application for landing, where the law establishes criteria which, if met, give rise to certain rights. |
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In a case such is this one the applicant does not have a "case to meet" of which he must be given notice; rather it is for him to persuade the decision-maker that he should be given exceptional treatment and exempted from the general requirements of the law. No hearing need be held and no reasons need be given. The officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, not even as to apparent contradictions that concern her. Of course, if she is going to rely on extrinsic evidence, not brought forward by the applicant, she must give him a chance to respond to such evidence. In a 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. |
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In this matter, the decision-maker attested that he reviewed a summary of a humanitarian and compassionate opinion prepared by another officer relating to the applicant and concurred in her opinion or recommendation that the applicant's application for exemption from the requirement that an application for landing must be filed from outside Canada should be refused. In the result, he issued the decision here under review. There is no evidence whatsoever that the decision-maker relied on extrinsic evidence or otherwise erred in a manner that would make his decision subject to judicial review against the foregoing extract from Shah.
There can be no doubt based on the tribunal record in this matter that officials in the respondent's department who were concerned with the processing of the applicant's application had grave doubts about his credibility and ethics. Certain of the commentary that appears in the tribunal record is less than professional. That notwithstanding, the applicant has failed to satisfy me that there exists on the record in this matter a basis for a reasonable apprehension of bias on the part of the decision-maker. In Pillay v. The Minister of Employment and Immigration3, Mr. Justice Denault wrote at pages 153 and 154:
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In my opinion, the evidence reveals that an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the Immigration Officer would decide the matter fairly. In the present case, when the interviews took place there was evidence of a marriage of convenience but the applicant was given an opportunity to respond to the allegations. I see no reasonable apprehension of bias. |
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I am satisfied that precisely the same can be said here with respect to the interviews conducted and the observations made during the home visit.
In the result, on the basis of the foregoing analysis, this application for judicial review will be dismissed. Neither counsel recommended certification of a question. No question will be certified.
"Frederick E. Gibson"
Judge
Toronto, Ontario
May 16, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1730-96
STYLE OF CAUSE: MALIK HAMID ZAMAN
- and -
AND IMMIGRATION
DATE OF HEARING: MAY 14, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN, J.
DATED: MAY 16, 1997
APPEARANCES:
Mr. Mendel M. Green
For the Applicant
Ms. Bridget A. O'Leary
For the Respondent
SOLICITORS OF RECORD:
Mr. Mendel M. Green
Green and Spiegel
Barristers and Solicitors
121 King St. West
Toronto, Ontario
M5H 3T9
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-1730-96
Between:
MALIK HAMID ZAMAN
Applicant
- and -
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 (1992), 55 F.T.R. 215 (F.C.T.D.)
2 (1994), 170 N.R. 238 (F.C.A.)
3 (1993), 22 Imm. L.R. (2d) 146 (F.C.T.D.)
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