Date: 20050615
Docket: IMM-8915-03
Citation:2005 FC 843
Ottawa, Ontario, June 15, 2005
Present: The Honourable Madam Justice Heneghan
BETWEEN:
GOWCHARAN TIKAPRASAD
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Gowcharan Tikaprasad (the "Applicant") seeks judicial review of the decision of P. Russell, Immigration Officer (the "Officer"), dated October 30, 2003. In that decision, the Officer denied the application made by the Applicant, seeking an exemption from the requirements of subsection 11(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended (the "Act"), on the basis of humanitarian and compassionate (H & C) grounds as provided in subsection 25(1).
[2] The Applicant is a citizen of Guyana. He entered Canada as an undocumented visitor on August 25, 2001 and was granted status for a six month period. This was later extended until December 4, 2003.
[3] In December 2002, the Applicant applied for permanent residence in Canada under the H & C sponsorship of his wife, Ms. Sookwattie Jagjit, a Canadian citizen. The basis for the application was his relationship with his wife and children.
[4] As part of the materials submitted in support of his application, the Applicant provided details about his personal life including his marital history and information concerning criminal charges against him.
[5] The Applicant had first married Ms. Jagjit in 1978, had two children together, and later divorced. He obtained custody of his children and moved to the United States of America where he obtained resident alien status. The Applicant and Ms. Jagjit each married for a second time and those marriages ended in divorce. The Applicant and Ms. Jagjit renewed their acquaintance in 1999 and on May 12, 2000, the Applicant proposed to Ms. Jagjit. They were married in Toronto in October 2000, following her divorce from her second husband, Mr. Raymond Fowler, in September 2000.
[6] As far as the Applicant's involvement with the criminal law is concerned, the Applicant provided a copy of a letter from the Sheriff of Hillsborough County, Florida and a copy of a record for arrest upon a charge of driving under the influence of alcohol in Hillsborough County in May 1997. However, on his H & C application, he indicated that he had never been charged for a crime or offence in Canada or any other country.
[7] Although the Officer did not provide formal reasons for rejecting the Applicant's H & C application, the Certified Tribunal Record contains copies of the "Humanitarian and Compassionate Narrative Report" and the Field Operations Support System ("FOSS") notes. The Officer recorded the following in the FOSS notes:
...CLIENT ENTERED CDA 25AUG01, OBTAINED VR EXT UNTIL 19JAN03. HE STATES HE MET HIS WIFE 24DEC99 IN FLORIDA, PROPOSED MARRIAGE 25MAY00, MARRIED 29OCT00 IN TORONTO. REVIEW OF DIVORCE CERT'S SHOWED CLIENT & SPONSOR, SOOKWATTIE JAGJIT, ID#2461-6867 WERE MARRIED ONCE BEFORE IN MAR78 & DIVORCED 17MAR83. THEY DID NOT MENTION ANY OF THIS INFORMATION IN DETAILS OF RELATIONSHIP. SPONSOR PROVIDED COPY OF DIVORCE CERT FROM EX-SPOUSE, RAYMOND FOWLER, ID#2289-1816, DIVORCED 18SEP00. SHORTLY AFTER MR FOWLER SPONSORED HIS FIANCÉ, ID#4404-5173 IN MAR01, APR WAS REFUSED IN JUL02 (SEE APR REMARKS FOR FULL DETAILS ON POSSIBLE MOC MARRIAGES).
CLIENT PROVIDED HILLSBOROUGH COUNTY, TAMPA, FLORIDA POLICE CERT. SHOWING HE WAS CHARGED WITH DRIVING UNDER THE INFLUENCE ON 07MAY97 BUT ON HIS APPLICATION FORM HE DECLARES HE WAS NEVER CHARGED OR CONVICTED. QUESTION CREDIBILITY OF CLIENT AND NOT SATISFIED THIS IS A BONA FIDE MARRIAGE. CLIENT ALSO HOLDS A U.S. RESIDENT ALIEN CARD...
[8] The Officer's decision was a discretionary one and is reviewable on the standard of reasonableness simpliciter; see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The application of this standard of review means that a Court will not intervene with the officer's decision simply because it would have reached a different conclusion. Further, as stated by the Federal Court of Appeal in Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.), the reviewing Court is not to engage in a reweighing of the evidence that was before the decision-maker. The reviewing Court should not disturb a decision based on a broad discretion unless that decision-maker has erred in principle in exercising its discretion or relied upon extraneous or irregular considerations.
[9] In my opinion, the Officer here committed such an error. The FOSS Notes demonstrate that the Officer failed to provide the Applicant with an opportunity to address the information concerning his wife's former husband, Mr. Fowler, and his suspicions concerning a marriage of convenience with Mr. Fowler. This information is included in the FOSS Notes and notably, is contained with the paragraph pertaining to the bona fides of the Applicant's second marriage to Ms. Jagjit. I conclude that these factors entered into the considerations of the Officer.
[10] The duty of fairness requires an officer who consults a third party and obtains information from that source to disclose it so that an applicant is aware of it and can respond; see Sorkhabi v. Canada (Secretary of State) (1994), 89 F.T.R. 224 (T.D.). In that case, Justice Gibson summarized at page 226 the findings of Justice Hugessen in Shah v. Canada (Minister of Employment and Immigration) (1994), 170 N.R. 238 (F.C.A.) as follows:
...Mr. Justice Hugessen restated the principle that it is common place that the content of the duty of fairness varies according to the circumstances. He pointed out that in the circumstances of an application under subsection 114(2), the decision itself is wholly a matter of judgment and discretion and the law gives the applicant no right to any particular outcome. He went on to state:
"In a case such as 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." [emphasis mine]
In support of the last quoted sentence regarding extrinsic evidence, Mr. Justice Hugessen cited Muliadi v. Canada (Minister of Employment and Immigration) (1986), 66 N.R. 8; 18 Admin. L.R. 243 (F.C.A.).
[11] In my opinion, the present H & C decision falls squarely within the exception discussed above. The Officer here relied on extrinsic material, that is information concerning the immigration status of a third party, which was not adduced by the Applicant. In relying on evidence concerning Mr. Fowler's attempts to sponsor his fiancé to reach a conclusion that the Applicant's marriage is not genuine, in light of the prior relationship between Ms. Sagjit and Mr. Fowler, the Officer may have misunderstood the basis of the Applicant's H & C application. No opportunity was given to the Applicant to respond to this evidence and to correct any misapprehension about the basis for his claim.
[12] In the result, this application for judicial review is allowed and the matter is remitted to a different officer for redetermination. There is no question for certification arising.
ORDER
In the result, this application for judicial review is allowed and the matter is remitted to a different officer for redetermination. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-8915-03
STYLE OF CAUSE: GOWCHARAN TIKAPRASAD v. MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: February 23, 2005
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER AND
ORDER: The Honourable Madam Justice Heneghan
DATED: June 15, 2005
APPEARANCES BY: Mr. Mario Bellissimo
For the Applicant
Mr. Michael Butterfield
For the Respondent
SOLICITORS OF RECORD: Mr. Mario Bellissimo
Toronto, Ont.
For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
For the Respondent