Docket : IMM-5674-03
Toronto, Ontario, June 9th, 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
LAKHVIR KAUR GHATOURA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision made by Paul Bassi, Senior Immigration Officer ("Officer") with Citizenship and Immigration Canada, dated July 8th, 2003, wherein the Officer determined that there were insufficient humanitarian and compassionate grounds to exempt the Applicant from the requirement of having to apply for permanent residence from outside of Canada.
FACTS
[2] The Applicant is a citizen of India who was admitted to Canada as a permanent resident on July 12th, 1997, with the term and condition that she marry her sponsor within 90 days of the date of her arrival and provide proof of this marriage within 180 days of her arrival. The marriage did not take place and the Applicant was reported and subsequently issued a Departure Order on April 21st, 1999, for failing to meet the term and condition of her admission to Canada. The Applicant appealed the Departure Order to the Immigration Appeal Division ("IAD"). In an April 25th, 2000 decision, the IAD denied the Applicant's appeal as it found that she had attempted to manipulate Canada's immigration system by coming to Canada under the pretext of marrying a man she had no intention of marrying.
[3] On April 20th, 2001, one year after the IAD's decision was rendered and immediately after being notified of the requirement that she attend a removal interview, the Applicant brought a motion to re-open the appeal which was denied by the IAD on June 14th, 2001. The Applicant filed an application for leave and for judicial review of the IAD's refusal to re-open her appeal which was granted by this Court on the ground that the IAD had failed to consider the Applicant's circumstances in India, the most probable country of destination in the event of her removal from Canada.
[4] The motion to re-open was remitted to the IAD for reconsideration and, on April 28th, 2003, the motion was once again denied. On April 3rd, 2001, the Applicant was issued a letter advising her that a removal interview was scheduled to take place on April 20th, 2001. On April 16th, 2001, the Applicant married a Canadian citizen, Narinder Singh, and on April 17th, 2001, she filed a Request for Exemption from Immigrant Visa Requirement along with the sponsorship application of her new husband.
THE OFFICER'S DECISION
[5] The Officer refused the Applicant's request for an exemption because he had doubts concerning the genuineness of the marriage and because he was not satisfied that the requirement of having to return to India to apply for a permanent resident visa would constitute unusual and undeserved or disproportionate hardship for the Applicant. The Officer stated on the first page of his decision:
Although Ms Ghatoura and her spouse have been cohabitating for more than two years the timing of their wedding, so soon after notification of the applicant's possible removal leaves a doubt concerning the genuiness of their marriage.
It is acknowledged that the applicant's departure from Canada would cause hardship of separation from her husband and family as well as loss of permanent employment and business difficulties for her brother in law dealing with the loss of a good employee. Ms Ghatoura would also be faced with the difficulties of readjusting to India, dealing with the embarrassment of returning alone and securing employment and accommodation. However these hardships are consistent with removal from Canada and are inherent with departures.
ISSUES
[6] Both parties essentially submit the same four issues for determination:
A. Did the Officer err by waiting for the IAD to render its decision prior to
considering the Applicant's request for an exemption?
B. Did the Officer err by applying the guidelines in force at the time of his decision
rather than applying the previous ones?
C. Did the Officer err by doubting the genuineness of the Applicant's marriage?
D. Did the Officer err when he found that the requirement of having to return to India to apply for permanent resident visa did not constitute unusual and undeserved or disproportionate hardship for the Applicant?
ANALYSIS
[7] To come to a determination in this matter, I will therefore address these four issues as presented:
A. Timing of the Officer's decision
[8] The Applicant alleges that the Officer erred in law by waiting for the IAD to render its decision on her appeal prior to making a finding regarding her application for exemption. After careful review of both parties' submissions as well as the applicable provisions, including Section 24 of the Immigration Act, R.S.C. 1985, c. I-2 ("I.A."), I am satisfied that the Officer rightly deferred consideration of the Applicant's request for an exemption until after the IAD's decision because were the Applicant successful, she would have permanent resident status based on her having previously applied for and obtained her permanent resident visa from outside the country. Therefore, had the Applicant been successful in her appeal, an exemption from the requirement of having to apply for permanent residence from outside of Canada would not have been necessary. I find this reason to be understandable, the main purpose being not to duplicate effort in a situation where a remedy can be obtained to neutralize the potential for further litigation.
B. Guidelines
[9] The Applicant alleges that the Officer erred in applying the guidelines that were in place at the time he rendered his decision ("new guidelines") rather than the guidelines that were in effect at the time the application was submitted ("old guidelines"). I have reviewed the submissions as well as the relevant jurisprudence regarding this issue and agree with the Respondent that as set out by the Supreme Court of Canada in Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271 at 278:
"No one has a vested right to continuance of the law as it stood in the past."
I have also reviewed the decision of my colleague Kelen J. in Osadalor v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. no. 895 which dealt with the same situation and I agree with his statement at paragraph 5:
"the old guidelines had no force after IRPA because they reflected the repealed law."
Considering the Applicant had no vested right to the application of the previous legislation and the fact that, even under the previous guidelines, it was not a "foregone conclusion" that a genuine marriage always resulted in a positive decision, I therefore find that the Officer did not err in applying the guidelines as he did.
C. The Applicant's marriage
[10] The key determination to be made under the old and new guidelines is whether the April 16th, 2001 marriage is genuine. In this case I find that the Officer's conclusion: "...leaves a doubt concerning the genuine of their marriage" is not a determination that meets the requirements of either the old, nor of the new guidelines. Under the guidelines the officer has to conclude as to whether a marriage is genuine or not and give reasons. It is not sufficient to "...leaves a doubt." Therefore based on this ground, I will order that this judicial review be granted and that a decision be rendered using the new guidelines.
D. Hardship
[11] Because of my previous finding there is no need for me to canvass this issue.
CONCLUSION
[12] Based on my review of the Officer's decision as well as the parties' submissions, I am of the opinion that the Officer's conclusion regarding the genuiness of the marriage has not been made in accordance with the new guidelines. By not concluding in a determinative way on such an important issue, the Officer erred in law which makes this decision patently unreasonable.
[13] The parties were asked if they had any questions for certification to propose and they did not.
ORDER
THIS COURT ORDERS THAT:
- This application for judicial review is granted and the matter should be remitted back for a redetermination by a different Officer using the IP5 Guidelines, dated November - 2002.
- No question will be certified.
"Simon Noël"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5674-03
STYLE OF CAUSE: LAKHVIR KAUR GHATOURA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 8, 2004
REASONS FOR ORDER
AND ORDER BY: NOËL J.
DATED: JUNE 9, 2004
APPEARANCES:
Ms. Krassina Kostadinov
FOR THE APPLICANT
Mr. Ian Hicks
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario
FOR THE RESPONDENT
FEDERAL COURT
Date: 20040609
Docket: IMM-5674-03
BETWEEN:
LAKHVIR KAUR GHATOURA
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER