Ottawa, Ontario, November 4, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Girish Sharad Pradhan's application for permanent residency in the Spouse or Common-law Partner in Canada class was refused, as the immigration officer was satisfied that Mr. Pradhan's marriage was not genuine, and was entered into primarily for the purpose of gaining status in Canada.
[2] Mr. Pradhan seeks judicial review of the immigration officer's decision, asserting that the officer erred in his or her assessment of the facts.
[3] For the reasons that follow, I am not satisfied that the officer properly considered all of the evidence relevant to Mr. Pradhan's application. As a result, the application for judicial review will be allowed.
The Immigration Officer's Decision
[4] The immigration officer had a number of reasons for concluding that Mr. Pradhan's marriage was not genuine. The officer found that the timing and circumstances of the marriage were not consistent with the couple's traditions. In this regard, the officer observed that despite the fact that Mr. Pradhan and his spouse met at a religious event, and were of the same religious background, they nonetheless married in a civil ceremony, and there was no subsequent religious ceremony.
[5] The officer was also influenced by the fact that this was Mr. Pradhan's first marriage, and yet his mother, who lives in India, was not present for the ceremony. The officer found that the couple could not adequately explain why they rushed into the wedding, especially since Mr. Pradhan was the proprietor of a business in India, and had other visas to allow him to travel to other religious events.
Preliminary Issue
[6] Mr. Pradhan points to the fact that the Certified Tribunal Record originally produced was incomplete, as certain documents relating to his wife were erroneously withheld, purportedly in compliance with the provisions of the Privacy Act. According to Mr. Pradhan, this, by itself, could form a sufficient basis for allowing the application. In the alternative, he submits that any deficiencies in the record should result in any inconsistencies between his version of events, and that of the immigration officer, being interpreted in his favour.
[7] I do not accept either submission. It appears that through an error on the part of the respondent, the record initially provided was indeed incomplete. However, once the error was detected, a complete record was quickly produced. Mr. Pradhan has had the complete tribunal record for a couple of months, and accordingly has not suffered any prejudice as a result of the error.
Standard of Review
[8] The parties agree that a question as to the genuineness of the marriage is a question of fact. However, Mr. Pradhan submits that decision should nonetheless be reviewed against a standard of reasonableness, whereas the respondent submits that the patent unreasonableness standard should apply. It is not necessary for me to resolve this issue in this case, as I am satisfied that the failure of the officer to consider relevant evidence means that the decision cannot withstand scrutiny under the less exacting standard of patent unreasonableness.
Analysis
[9] The relevant test is set out in section 4 of the Immigration and Refugee Protection Regulations, which provides that no foreign national shall be considered a spouse if the marriage is not genuine, or was entered into primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act.
[10] In this case, the immigration officer looked to a number of factors in order to determine whether Mr. Pradhan was indeed a "spouse" within the meaning of the Regulations.
[11] By way of example, the officer considered the fact that Mr. Pradhan was a religious worker, and that he and his wife shared a common religious faith, and indeed met at a religious event. Nevertheless, their marriage was a civil one, and was not followed by a religious ceremony, either here in Canada or in India. While it may have been reasonably open to the immigration officer to draw a negative inference from these facts, the officer does not address Mr. Pradhan's claim that the couple would be travelling to India in the future for a religious ceremony, at which his mother would be in attendance.
[12] The officer also concluded that Mr. Pradhan failed to provide a satisfactory explanation as to why the marriage was entered into with some haste. In this regard it should be noted that Mr. Pradhan came to Canada on July 7, 2003, met his wife some six days later, and married in October of that same year. Having reviewed the record, including the officer's contemporaneous notes of the interview with Mr. Pradhan, I am satisfied that this conclusion was also one that was reasonably open to the officer.
[13] However, there was additional evidence before the officer that was, in my view, relevant to the issue of the genuineness of the marriage that does not appear to have been taken into account by the officer in coming to the conclusion that the marriage was not genuine. This evidence included copies of Mr. Pradhan and his wife's drivers' licences, indicating that they lived at the same address, proof that they held a joint bank account, and a copy of an agreement of purchase and sale, indicating their intention to purchase a home together.
[14] It is true that a tribunal will be presumed to have considered all of the evidence before it. However, where, as here, there is relevant evidence that runs directly contrary to the Board's finding on the central issue, there is an obligation on the board to analyse that evidence, and to explain why it does not accept it or prefers other evidence on the point in question: Cepeda-Gutierrez v. Canada (MCI) [1998] F.C.J. No. 1425, 157 F.T.R. 35, ¶ 14 - 17.
Conclusion
[15] For these reasons, the application for judicial review is allowed.
Certification
[16] Neither party has suggested a question for certification, and none arises here.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a different immigration officer for redetermination.
2. No serious question of general importance is certified.
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-10452-04
STYLE OF CAUSE: GIRISH SHARAD PRADHAN v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 3, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Mactavish
DATED: November 4, 2005
APPEARANCES:
Max Chaudhary FOR THE APPLICANT
Angela Marinos FOR THE RESPONDENT
SOLICITORS OF RECORD:
MAX CHAUDHARY
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT