BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] These reasons follow the hearing of an application for judicial review of a decision of the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Board, whereby it dismissed the appeal of the Applicant from a decision of a Visa Officer which denied the sponsored application of the Applicant's spouse for admission to Canada. The Visa Officer found the Applicant's spouse to be a member of an inadmissible class of persons. The presiding member of the IAD concluded:
It is my conclusion that the marriage existing between the appellant [here the Applicant] and the applicant [here the Applicant's spouse] is not genuine and that it was entered into for the primary purpose of acquiring any status or privilege under the [Immigration and Refugee Protection Act].
The decision under review is dated the 30th of March, 2005.
[2] I am satisfied that, for the purposes of these reasons, it is un-necessary to recite at any length the rather complex factual background to the decision under review. Suffice it to say that the Applicant, a citizen of India, first married in January of 1999. He acquired landed status in December of 1999 and joined his wife here in Canada. The Applicant and his first wife separated in February of 2000 and divorced in November of 2001. He nonetheless remained in Canada. In February of 2002, he married his current wife in India and sponsored her for immigration to Canada. It is that sponsorship that has led to the decision under review.
[3] After a brief two paragraph introduction to the reasons for decision now before the Court, the presiding member of the IAD wrote:
This is a difficult case in that there are sound reasons to believe the appellant [here the Applicant] was involved in some type of misrepresentation purposefully laid out years ago and designed to obtain his successful entry into Canada. As evidence was the appellant's testimony at this hearing which, in my view, sought to purposefully obfuscate the circumstances surrounding his first marriage. Specifically, the appellant testified that he comes from a family of means in India and the only reason he came to Canada in the first place was to be with his first wife. Yet, he was only with her for two short months before he left her to live with his brother. When asked why he then did not return to India seeing that the only reason he came to Canada was because of his marriage, his response was "How could I leave my job?"
At this hearing the appellant finds himself entangled in this web of deceit spun years ago, a web that unfortunate [sic] for him he felt obliged to enlarge.
Regardless, as abhorrent as his subterfuge may be, this is not the matter that is primarily before me.
...
...echoing the words of my learned colleague MacAdam in the Singh... decision, my task is not to punish the applicant or appellant for having misled Canada immigration officials about any aspect of this case but to assess the bona fides of this marriage as prescribed by the law. [citation omitted]
[4] It is idle to speculate as to the "sound reasons" referred to at the opening of the first paragraph of the foregoing quote, but if I were to do so, I would focus on a "poison pen" letter that was before the IAD that had been written by the Applicant's first wife[1]. The "poison pen" letter had been disclosed by the IAD to the Applicant. Although the same letter had been before the Visa Officer who first denied the Applicant's second wife's sponsored application to come to Canada, it had not been disclosed in the course of that proceeding.
[5] The balance of the reasons of the presiding member of the IAD focuses on an assessment of the quite voluminous evidence that was before him and then very briefly arrives at the conclusion that is here under review. The hearing before the IAD lasted a full day and gave rise to a 170 page transcript.
[6] The presiding member's concerns expressed in the paragraphs quoted above from his reasons for decision were not expressed by the presiding member during the hearing. That being said, counsel for the Applicant took me to a range of interventions made by the presiding member during the course of the hearing that tended to reflect the presiding member's concern that the Applicant had entangled himself in a web of deceit that "he felt obliged to enlarge". The same concern would appear to have carried over into interventions by the presiding member during the testimony of other witnesses before the IAD and into interventions made by the presiding member during the closing submissions made by counsel for the Applicant.
[7] Before the Court, counsel for the Applicant urged that the decision under review should be set aside on the ground, among others, that the presiding member, through the paragraphs and sentence above quoted and his interventions at hearing gave rise to a reasonable apprehension of bias on his part.
[8] In Baker v. Canada(Minister of Citizenship and Immigration)[2], Madam Justice L'Heureux-Dubé, for the majority, wrote at paragraphs 46 and 47 of her reasons:
The test for reasonable apprehension of bias was set out by de Grandpré J., writing in dissent, in Committee for Justice and Libertyv. National Energy Board... :
...the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... [T]hat test is "what would an ... informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.
This expression of the test has often been endorsed by this Court, ...
It has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved: ...The context here is one where Immigration officers must regularly make decisions that have great importance to the individuals affected by them, but are also often critical to the interests of Canada as a country. They are individualised, rather than decisions of a general nature. They also require special sensitivity. Canada is a nation made up largely of people whose families migrated here in recent centuries. Our history is one that shows the importance of immigration, and our society shows the benefits of having a diversity of people whose origins are in a multitude of places around the world. Because they necessarily relate to people of diverse backgrounds, from different cultures, races, and continents, immigration decisions demand sensitivity and understanding by those making them. They require a recognition of diversity, an understanding of others, and an openness to difference.
[citations omitted]
While in the second quoted paragraph Madam Justice L'Heureux-Dubé refers specifically to Immigration Officers, I am satisfied that the paragraph applies equally to presiding members of the IAD.
[9] I am further satisfied, against the foregoing, and taking into account all of the material before the Court on this matter, that the quoted paragraphs and sentence from the reasons of the presiding member, and that member's interventions during the course of the hearing of this matter, would lead a well-informed member of the community to perceive bias on the part of the presiding member. In the result, on that ground alone, this application for judicial review will be granted, the decision under review will be set aside and the matter will be remitted to the IAD for re-hearing and re-determination by a different member.
[10] Two other issues were raised on behalf of the Applicant during the course of the hearing before this Court.
[11] The first involved the failure of the Visa Officer whose decision was appealed to the IAD to disclose the "poison pen" letter, earlier referred to, to the Applicant and to provide him with a reasonable opportunity to respond thereto. I am satisfied that any breach of fairness arising from that failure to disclose was overcome when the IAD disclosed the letter to the Applicant and provided him, during the course of the hearing before it, with an opportunity to respond.
[12] The second was whether the IAD ignored relevant evidence before it, took into account irrelevant considerations and failed to provide a full "de novo" hearing. At the close of the hearing before me, and with out engaging in any significant analysis on this issue, I advised counsel that my preliminary disposition on the issue, given the defference owed to the IAD on it, would be to decide against the Applicant. Put another way, it appeared to me that the IAD in fact conducted a de novo hearing and reflected that reality in its reason, and further reached a conclusion on the evidence before it that was reasonably open to it.
[13] At the close of the hearing of this application for judicial review, Counsel were advised that the application would be allowed and of the basis for that result. Neither Counsel recommended certification of a question. The Court itself is satisfied that no serious question of general importance arises out of this matter that would be dispositive of an appeal. In the result, no question will be certified.
"Frederick E. Gibson"
Ottawa, Ontario,
November 9, 2005
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2341-05
STYLE OF CAUSE: HARJINDER SINGH JANJUA
Applicant
and
THE MINSITER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario.
DATE OF HEARING: November 2, 2005
REASONS FOR ORDER: GIBSON J.
DATED: November 9, 2005
APPEARANCES BY:
Mario D. Bellissimo For the Applicant
Sharon Stewart Guthrie: For the Respondent
SOLICITORS OF RECORD:
Ormston, Bellissimo, Younan For the Applicant
Barristers and Solicitors,
Toronto, Ontario.
John H. Sims, Q.C., For the Respondent
Deputy Attorney General
of Canada
Toronto, Ontario.