Date: 20020530
Neutral citation: 2002 FCT 619
Toronto, Ontario, Thursday, the 30th day of May, 2002
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
VIGNESWARAN KANDIAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Vigneswaran Kandiah ("Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Appeal Division ("Appeal Division") dated April 3rd, 2001. In its decision, the Appeal Division dismissed an appeal from the refusal of a sponsored application for permanent residence made by Thevaki Vigneswaran, the wife of the Applicant.
[2] The Applicant was born in Sri Lanka December 26th, 1958. He entered Canada and made a Convention Refugee claim in 1992. He lived in Montreal from 1992 until 1999, when he moved to Toronto.
[3] Upon his arrival in Montreal, the Applicant lived in a house with several other people including Ms. Sugantee Makanda, a sister of his wife.
[4] In 1994, the Applicant expressed to Ms. Makanda his interest in marrying her sister. This interest was communicated to the family in Sri Lanka, following the social customs and ultimately a marriage was arranged between the Applicant and Thevaki Vigneswaran.
[5] The Applicant married in Sri Lanka on July 27th, 1997. He remained with his wife in Sri Lanka for a month, returning to Canada in August 1997, his wife remaining behind in Sri Lanka where she was employed as a teacher.
[6] In March 1998, the Applicant began the sponsorship of his wife to gain her admission to Canada. His wife attended for an interview before a visa officer on October 14th, 1999, in connection with her application for permanent residence in Canada. She was questioned about her knowledge of Canada, her familiarity with her husband's personal background and circumstances of the Applicant, and about the lapse of time between her marriage and the application for sponsorship, among other things.
[7] The visa officer was not satisfied that there was a true relationship between the Applicant and his wife, on the basis of the answers given by the wife at the interview. The visa officer recorded his impressions in his notes and determined that he was refusing the application for permanent residence. This negative decision was communicated to the wife by letter dated October 26th, 1999. That refusal gave rise to the appeal before the Appeal Division.
[8] The hearing before the Appeal Division took place on January 25th, 2001. The Applicant testified, as well as his sister-in-law, Ms. Makanda and her husband, Mr. Jindran Subramanian, a boyhood friend and husband of Ms. Makanda. The Applicant's wife did not testify nor did she file an affidavit for use in the proceedings before the Appeal Division. However, the record before the Appeal Division included the notes of the interview with the visa officer and the supporting documents which had been filed before the visa officer.
[9] The Appeal Division dismissed the appeal on the basis that, on the balance of probabilities, the marriage of the Applicant was primarily for the purpose of gaining the admission into Canada of the wife as a member of the family class and that the wife lacked the intention of permanently residing with the Applicant. The Appeal Division concluded that the Applicant's wife is excluded as a member of the family class. The Appeal Division generally described the evidence presented before as being of little probative value, although it did not specifically make negative credibility findings against the Applicant of the witnesses who testified on his behalf.
[10] The present application for judicial review challenges the decision of the Appeal Division on the basis of the patently unreasonable findings of fact and an error of law arising from a misapprehension of the evidence.
[11] The Respondent argues that the Applicant's submissions are essentially directed to the manner on which the Appeal Division weighed the evidence. That is a matter solely within the jurisdiction of the Appeal Division. According to its reasons, the Appeal Division did weigh the evidence and reasonably concluded that the Applicant's wife had not demonstrated her intention to permanently reside with the Applicant.
[12] The issue before the Appeal Division was a determination where the Applicant's wife was a member of the family class as defined in the Immigration Regulations, SOR/93-44, S.4(F)(3) which reads as follows:
The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.
[13] In Canada (Minister of Citizenship and Immigration) v. Heera, [1994] F.C.J. No. 1594, Noël J. (as he then was), considered the role of the Appeal Division in relation to an application involving section 4(3) of the Regulations and said as follows:
... The Appeal Division misconstrued its statutory mandate in holding that the respondent's belief that her sponsored husband intended to live with her permanently in Canada was determinative of the issue before it. Its prime task was to test that assertion against the relevant facts and ascertain whether it could be supported objectively. ...
[14] This means that the Appeal Division, in determining whether a person is a spouse within the meaning of the family class, must examine the intention of that person to reside permanently with his or her spouse. In other words, the intentions of the other spouse and of third parties are not the primary intentions to be considered by the decision maker in such a case.
[15] Here, the Appeal Division had the evidence of the Applicant, his sister-in-law and her husband as to the genuineness of the Applicant's marriage and his intention to reside permanently with his wife, once she came to Canada. There was evidence of the wife's intentions before the Appeal Division, as appears from the impressions of the visa officer and the refusal letter dated October 26th, 1999. According to that evidence, the Applicant's wife lacked knowledge of basic facts about her husband including his caste, his ethnic background and his salary. She was also unable to explain the delay by the Applicant beginning the sponsorship application having regard to the fact that she was married in August 1997 and the sponsorship application was not begun until March 1999.
[16] In the present case, the Appeal Division specifically reached the conclusion that the wife is not a member of the family class. In my opinion, there was evidence before the Appeal Division to support this conclusion and there was no basis to interfere with it.
[17] The application for judicial review is dismissed. Counsel advised that there was no question for certification.
ORDER
1. The application for judicial review is dismissed.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2055-01
STYLE OF CAUSE: VIGNESWARAN KANDIAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, MAY 28, 2002
REASONS FOR ORDER
AND ORDER BY: HENEGHANJ.
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Ms. Amina Riaz
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020530
Docket: IMM-2055-01
BETWEEN:
VIGNESWARAN KANDIAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER