Docket: IMM-638-05
Ottawa, Ontario, this 9th day of December, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
AMAR SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
( Delivered orally from the bench and subsequently written for precision and clarification)
[1] Amar Singh (the "Applicant") appealed the refusal of the Citizenship and Immigration Canada visa officer to approve the sponsored permanent visa application made by his wife, Geeta Rani. The Applicant came to Canada from India in 1977. His first marriage was in 1996 ended in 1997 which was 7 months after the first wife came to Canada. On March 17, 2002, the Applicant married Geeta Rani ( Geeta) in India. He met Geeta two weeks prior to the wedding which their families had arranged. He was 28 years old and divorced, and she was 18 years old and never-married. On August 20, 2002 Geeta applied to be sponsored by the Applicant in order to become a permanent resident in Canada.
[2] The applicable regulations governing the vias officer's conduct are found in the Immigration and Refugee Protection Regulations, S.O.R./2004-167
4. For the purposes of these Regulations, no foreign national shall be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.
[3] On April 2, 2003, the Visa Officer determined that the marriage was not genuine by finding the couple was incompatible under Indian norms (large age differential and divorce of the Applicant), her knowledge of the Applicant was minimal, their contact since the wedding was sparse, and her testimony was contrived and evasive. She specifically noted in the CAIPS notes:
- Although SPR stayed allegedly for one month after the wedding, no post-wedding pictures were submitted.
- No letters, no cards.
- Although phone bills from CDA were submitted, given PI S blatant lack of knowledge of her SPR. I cannot give probative value to the phone bills.
[4] The Applicant appealed this decision to the Immigration Appeal Division of the Immigration and Refugee Board ("IAD"). In a decision dated January 18, 2005, given subsequent to a de novo hearing, the IAD reaffirmed the Visa officer's decision.
[5] The IAD referenced the visa officer's concerns, and felt that the age difference was improperly considered by the Visa officer. Otherwise, the visa officer's decision was upheld as her concerns were not satisfactorily addressed by the Applicant. It focussed on the lack of Geeta's knowledge about her husband, the absence of an explanation as to why she would accept a divorced husband and the fact that Geeta did not testify. The IAD did not comment on the new evidence. The applicant now seeks judicial review of the IAD decision.
[6] The standard of review for cases concerning the genuineness of marriages is patently unreasonable. (see Ly v. Canada (Minister of Citizenship and Immigration), 2003 FC 1184 ; Jaglal v. Canada (Minister of Citizenship and Immigration), 2003 FCT 685; Dang v. Canada (Minister of Citizenship and Immigration), 2004 FC 1090)
[7] The applicant in the appeal produced in addition to the evidence before the Visa officer the following items:
1. Copies of letters and postmarked envelopes sent to the Applicant by Geeta. Eight letters and envelopes were included which amounted to 25 pages in total.
2. Copies of greeting cards and post marked envelopes sent to the Applicant by his Geeta. Five letters and envelopes were included which amounted to 24 pages in total.
3. Copies of telephone long distance cards used by the Applicant to telephone Geeta in India.
4. Copy of a CIBC Money Order, dated October 31, 2003 in the amount of CDN$500. This money order bears the name of Amar Singh and is made payable to Geeta Rani.
5. Colour copies of photographs of the Applicant and Geeta at their wedding, of the couple together on an outing, and a number of photographs of herself that Geeta Rani has sent to her husband since he returned to Canada.
6. Airplane tickets showing the Applicant had visited India in September 2004.
[8] The parties are in agreement that, based on Kahlon v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 91 (F.C.A.), an appeal heard under s. 63(1) of the IRPA results in a hearing de novo. In such a hearing, the IAD does not need to comment on every piece of new evidence that is proffered, but it must deal with evidence that directly contradicts or at least addresses the concerns of the original decision-maker.
[9] The IAD failed to do so in this case. The IAD makes no mention of the new evidence. It could well be that the IAD considered the new evidence and still found it still wanting. However, it did not refer to any of the new evidence, let alone give any reasons for not finding it convincing. Given that the evidence addresses the very concerns voiced by the Visa officer, this failure to address the relevant evidence concerning key findings constitutes a reversible error. (see Kocak v. Canada (Minister of Citizenship and Immigration), 2004 FC 1288). Accordingly, the decision of the IAD will need to be set aside.
ORDER
THIS COURT ORDERS that the decision of January 18, 2005 is set aside and the matter be referred back to the IAD to be reheard by a differently constituted panel, which panel shall specifically address the evidence referred to in para 7 above.
A Konrad W. von Finckenstein @
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-638-05
STYLE OF CAUSE: AMAR SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATES OF HEARING: DECEMBER 7, 2005
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN J.
DATED: December 9, 2005
APPEARANCES BY:
Ricardo Aguirre FOR THE APPLICANT
Alexis Singer FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jaswinder Gill FOR THE APPLICANT
Gill Law Office
Brampton, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada