Date: 20040526
Docket: IMM-970-03
Citation: 2004 FC 772
Vancouver, British Columbia, Wednesday, the 26th day of May 2004
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
SURESEKARAN SUBRAMANIUM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Suresekaran Subramanium (the "Applicant") is a citizen of Sri Lanka who was found to be a Convention refugee by the former Convention Refugee Determination Division constituted under the former Immigration Act, R.S.C. 1985, c. I-2, as amended. He obtained permanent resident status in Canada in May 2000. On May 21, 2001, he married Ms. Vinotha Murugesapillai, also a citizen of Sri Lanka, in Narvik, Norway, in a civil ceremony. The
Applicant and his wife planned to participate in a religious ceremony, according to the tradition of the Hindu religion, in Canada, after the arrival of Mrs. Subramanium in this country.
[2] On May 31, 2001, Mrs. Subramanium was taken into custody by Norwegian authorities and deported to Sri Lanka on June 1, 2001.
[3] On July 6, 2001, the Applicant applied to sponsor the admission into Canada and following his approval as a sponsor, Mrs. Subramanium sought permanent residence in Canada. In that regard, she attended an interview with a visa officer in Colombo on September 5, 2001.
[4] According to the Tribunal Record and the notes made by the visa officer, he initially decided that her marriage to the Applicant was genuine. However, the visa officer subsequently changed his mind and refused the sponsored application for permanent residence on the grounds that Mrs. Subramanium was disqualified under section 4(3) of the Immigration Regulations, 1978, SOR 78-172, as amended.
[5] Upon appeal to the Immigration Appeal Division (the "Board"), the matter proceeded on a de novo basis. Both the Applicant and Mrs. Subramanium testified, and were examined by their own counsel, the Minister's representative.
[6] The Board dismissed the Applicant's appeal on the basis that he was disqualified under section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227, as amended (the "Regulations"). In brief, the Board concluded that the Applicant was disqualified from sponsoring his wife because his marriage with her had been contracted for the primary purpose of obtaining her admission into Canada as a member of the family class and he lacked the intention of permanently residing with her once she was landed in Canada.
[7] This application for judicial review is based upon section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, as amended. Section 18.1(4) sets out the grounds upon which a judicial review application can be granted. Section 18.1(4) is relevant and provides as follows:
| The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal ...
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
|
|
Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l'office fédéral, selon le cas_: ...
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; |
[8] Having heard the submissions of counsel and having read the material filed, including the transcript of the hearing before the Board, I conclude that this application for judicial review should be allowed. In my opinion, the Board committed reversible errors by basing its decision on patently unreasonable findings of fact that were made either perversely or without regard to the evidence submitted. I refer to the following examples; there are others.
[9] The Board's finding that the Applicant entered a marriage for the purpose of obtaining his wife's entry into Canada is based upon the imputation to Mrs. Subramanium of foreknowledge about her imminent deportation from Norway. That "finding" is simply not supported by the evidence; the finding was made in a "perverse or capricious manner".
[10] The Board found that the Applicant's brother was married in Norway in accordance with Hindu tradition and relied on this finding to reject, as credible, the evidence explaining why only the civil, but not the religious, marriage ceremony was conducted in Norway. The Board erroneously built upon its finding in this regard to justify its conclusion that the Applicant's marriage was not bona fide but made for the prohibited purpose set out in section 4 of the Regulations.
[11] The problem with the Board's finding, and its subsequent reliance upon it, is that there is no evidence to support it. The Tribunal Record is silent about where the Applicant's brother was married. The Board made this finding "without regard for the material before it".
[12] In the result, this application for judicial review will be allowed and the matter returned for redetermination before a differently constituted panel of the Board. There is no question for certification arising.
ORDER
This application for judicial review is allowed and the matter remitted for redetermination by a differently constituted panel of the Board. There is no question for certification arising.
(Sgd.) "E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-970-03
STYLE OF CAUSE: SURESEKARAN SUBRAMANIUM
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: May 25, 2004
REASONS FOR ORDER AND ORDER: HENEGHAN, J.
DATED: May 26, 2004
APPEARANCES:
Mr. Douglas Cannon FOR APPLICANT
Mr. Benton Mischuk FOR RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR APPLICANT
Vancouver, BC
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada