Date: 20011025
Docket: IMM-395-01
Neutral citation: 2001 FCT 1160
PRESENT: The Honourable Madam Justice Heneghan
B E T W E E N:
PRAKASH SAHATOO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] Mr. Prakash Sahatoo (the "Applicant") seeks judicial review of the decision of Venus Abdul Malak, Immigration Officer ("Immigration Officer") dated January 16, 2001. In her decision, the Immigration Officer determined that the Applicant would not receive an exemption pursuant to the Immigration Act, R.S.C. 1985, c. I-2, as amended, section 114(2) (the "Act").
FACTS
[2] The Applicant was born in Trinidad on August 4, 1972. He married Romeen Lydia Walker-Sahatoo, a Canadian citizen, on January 15, 2000.
[3] The Applicant originally entered Canada on September 15, 1988. He submitted a claim for Convention Refugee status; that claim was dismissed and he was asked to leave the country. He left Canada in 1993, returning to Trinidad where he remained for one year. He then returned to Canada in November 1994 and has remained here since that time.
[4] The Applicant and his wife were interviewed by the Immigration Officer on December 7, 2000. Questions were asked concerning their marriage and the practicalities of their lives, including home conditions, places and hours of employment, earned income, responsibility for living expenses, circumstances surrounding their initial meeting, details of their courtship and marriage. According to the notes maintained by the Immigration Officer, the Applicant and his wife were advised that the purpose of the interview was to establish the genuineness of their marriage and to rule out the possibility that it was a marriage of convenience to facilitate the admission of the Applicant into Canada.
[5] The Immigration Officer was not satisfied that the marriage of the Applicant was genuine. Her notes recorded her concerns with the responses provided by the Applicant and his spouse to her inquiries concerning their lives together. The decision of the Immigration Officer provides, in part, as follows:On 12/7/2000, a delegate of the Minister of Citizenship and Immigration reviewed the individual circumstances of your request for an exemption from the requirement of subsection 9(1) and decided that an exemption will not be granted for your application.
Furthermore, it has been determined that you are a member of the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act. You are not eligible for consideration as a member of the family class pursuant to subsection 4(3) of the Immigration Regulations in that, in my opinion, you entered into the marriage with ROMEEN LYDIA WALKER primarily for the purpose of gaining admission to Canada and not with the intention of residing permanently with your spouse.
APPLICANT'S SUBMISSIONS
[6] The Applicant sets out many issues but they can be summarized as dissatisfaction with the result reached by the Immigration Officer: he disagrees with her conclusions concerning the genuineness of his marriage to his wife and sponsor. He says that his marriage is one founded on love, affection and intimacy, in which he supports his wife and her minor daughter. He argues that the Immigration Officer acted unfairly in failing to provide an opportunity to answer any questions about the inconsistencies in the interview answers.
RESPONDENT'S SUBMISSIONS
[7] The Respondent's position is likewise straightforward. Counsel for the Respondent argues that the Immigration Officer reasonably concluded on the basis of the answers provided by the Applicant and his wife at the interview, that the marriage was not genuine. The Respondent submits that the Immigration Officer followed the guidelines set out in the Immigration Manual in assessing the bona fides of the marriage and reached a reasonable conclusion. Finally, the Respondent argues that the Immigration Officer owed no duty to give the Applicant and his wife an opportunity to resolve differences in their answers.
[8] Furthermore, the Respondent argues that the role of the Court in the application for judicial review is to review the process followed by the statutory decision-maker, not to substitute its own assessment of the evidence or to reach an independent conclusion.
ANALYSIS
[9] The result of this application for judicial review depends on the applicable standard of review. In Maple Lodge Farms v. Canada [1982] 2 S.C.R. 2 (S.C.C.), at pages 7 and 8 the Court commented on the discretion due to the decision of a statutory decision-maker:It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon consideration irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[10] In this case, the Immigration Officer was required to make a decision concerning the Applicant's desire to apply for permanent residence within Canada. This is an exception to the general rule that a person seeking entry into Canada must apply for a visa prior to entering the country. This requirement flows from section 9(1) of the Act which provides as follows:
| 9(1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry. |
9(1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée. |
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[11] Section 114(2) of the Act allows the Respondent to obtain an exemption from compliance with this requirement of the Act. Section 114(2) provides as follows:
| 114(2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
114(2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière. |
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[12] The Applicant bears the burden of showing that he is entitled to enter Canada and reside here. That burden is set out in section 8 of the Act as follows:
| 8(1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
8 (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
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[13] The Immigration Officer was authorized to question the Applicant and his spouse about the circumstances of their lives together. As said by Justice Gibson in Adebiyi v. Canada (Minister of Employment and Immigration (1994), 73 F.T.R., 230 at page 233:Marriage interviews or spousal interviews are quite special in their characteristics.
[14] The purpose of the spousal interview was commented upon by Justice Noël (as he then was) in Grewal v. Minister of Employment and Immigration (1993), 62 F.T.R. 308. At the same time, the Court addressed the issue of procedural fairness in relation to such interviews when it said:As to the declaratory relief claimed by the applicant, in the absence of special circumstances, I do not believe that procedural fairness, once engaged, requires that an applicant be given an opportunity to respond to discrepancies arising from spousal interviews. The interview process is conducted separately for the very purpose of avoiding collusion between the claimant and his witnesses as to the circumstances of the alleged bona fide marriage and for the purpose of elucidating the truth. It would, in my view, frustrate this process to allow the applicant and his witnesses to restate their position once confronted with discrepancies.[1]
[15] The Immigration Officer concluded that the Applicant was inadmissible because he had failed to show that his marriage is genuine. On the basis of the record I find no error in the process followed by the Immigration Officer in reaching her decision. There is a reasonable basis for the decision. Accordingly, the application is dismissed. There is no question for certification.
ORDER
The application for judicial review is dismissed.
"E. Heneghan"
______________________________
J.F.C.C.
Toronto, Ontario
October 25, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-395-01
STYLE OF CAUSE: PRAKASH SAHATOO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, OCTOBER 23, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: THURSDAY, OCTOBER 25, 2001
APPEARANCES: Ishwar Sharma
For the Applicant
Matthew Oommen
For the Respondent
SOLICITORS OF RECORD: Roop N. Sharma
Barrister & Solicitor
942 Gerrard Street East
Toronto, Ontario
M4M 1Z2
For the Applicant
Morris Rosenberg
Deputy Attorney General
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011025
Docket: IMM-395-01
Between:
PRAKASH SAHATOO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER