Date: 20040609
Docket: IMM-1280-03
Citation: 2004 FC 820
Ottawa, Ontario, this 9th day of June, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
NAZLENE BAKSH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Ms. Nazlene Baksh is a Canadian citizen. She wished to sponsor her spouse, a citizen of Guyana, to obtain permanent residence in Canada. A visa officer refused her sponsorship application. Ms. Baksh appealed that decision to the Appeal Division of the Immigration and Refugee Board. The Board agreed with the visa officer that Ms. Baksh's spouse married her primarily for the purpose of gaining admission to Canada, not in order to live with her permanently. As such, he could not be considered a spouse according to subsection 4(3) of the Immigration Regulations, 1978, SOR/78-172.
[2] Ms. Baksh raised a single issue before me. It relates to the Board's treatment of a statutory declaration filed by counsel for the Minister after the conclusion of the hearing. The Board accepted the declaration and referred to it in its reasons. Ms. Baksh argues that the Board treated her unfairly by considering evidence she could neither challenge by cross-examination nor respond to. The issue is:
Did the Board err by accepting and referring to evidence filed after the conclusion of the hearing?
[3] The Board had to decide whether Ms. Baksh's spouse's interest in the marriage was motivated by a desire to be with his parents. They were attempting to secure permanent residence in Canada, sponsored by their other son. Both Ms. Baksh and her spouse testified that the parents were in Canada and expected to obtain their status shortly.
[4] Counsel for the Minister attempted to rebut this testimony. Near the end of the hearing, he informed the Board that computer records contained no reference to the parents' presence in Canada. Counsel for Ms. Baksh argued that the Board should not consider this new information. He asked for, and was granted, an opportunity to respond to it by way of written submissions.
[5] The day after the hearing, counsel for the Minister filed the statutory declaration to which Ms. Baksh objects. The declaration was sworn by an immigration officer who declared that a further search of computer records showed that the parents were indeed being sponsored for permanent residence by their son. In other words, the declaration was consistent with the testimony of both Ms. Baksh and her spouse. It was contrary to the information provided by counsel for the Minister at the hearing.
[6] In his written submissions, counsel for Ms. Baksh asked the Board not to accept this statutory declaration. He raised two objections. First, the evidence was out of time. Second, it was irrelevant. He referred the Board to independent evidence that the parents had legal status in Canada as visitors.
[7] The Board decided to accept the statutory declaration, as well as the evidence cited by Ms. Baksh's counsel. This evidence was relevant, according to the Board, to the question whether Ms. Baksh's spouse had an ulterior motive for the marriage - to join his brother and parents in Canada.
[8] Ms. Baksh argues that the Board treated her unfairly by considering the evidence tendered by counsel for the Minister. She suggests that she was denied an opportunity to cross-examine the author of the declaration and to respond to the contents of the declaration by way of oral testimony.
[9] In the circumstances of this case, I cannot agree with Ms. Baksh's argument. She and her husband both testified that his parents were in Canada and expected to become permanent residents soon. Counsel for the Minister suggested that his information was to the contrary, but the statutory declaration he filed after the hearing confirmed Ms. Baksh and her husband's testimony. He apologized for the confusion caused by his submissions at the hearing. I cannot see any unfairness to Ms. Baksh. Any inferences the Board drew from the evidence relating to the parents' circumstances could have come from the oral testimony, the statutory declaration or even from the written submissions supplied by counsel for Ms. Baksh. Ms. Baksh could not be prejudiced by the Board's acceptance of evidence that confirmed her own and her husband's testimony.
[10] Accordingly, I must dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed;
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1280-03
STYLE OF CAUSE: NAZLENE BAKSH v.THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 1, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
DATED: June 9, 2004
APPEARANCES:
Mr. M. Max Chaudhary FOR THE APPLICANT
Mr. Jeremiah Eastman FOR THE RESPONDENT
SOLICITORS OF RECORD:
M. MAX CHAUDHARY FOR THE APPLICANT
Toronto, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada