Date: 20041027
Citation: 2004 FC 1514
Toronto, Ontario, October 27th, 2004
Present: The Honourable Madam Justice Mactavish
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
MUZAFFAR SAEED
Respondent
REASONS FOR ORDER AND ORDER
[1] Muzaffar Saeed is a permanent resident who has been trying to bring his new wife and child to Canada. His wife's application for a permanent resident visa was rejected by a visa officer, who found that she was not a member of the family class, as she had not previously been examined. The Immigration Appeal Division of the Immigration and Refugee Board allowed Mr. Saeed's appeal from this decision.
[2] The Minister now seeks judicial review of the IAD's decision, asserting that there was no evidentiary foundation for its finding that Mr. Saeed told the visa officer that he was getting married. The Minister further submits that the IAD erred in finding that procedural fairness required that the visa officer advise Mr. Saeed of his obligation to have his wife examined, once he was made aware of Mr. Saeed's marriage plans.
Chronology of Events Leading up to the Visa Officer's Decision
[3] In order to properly understand the position of the parties in this case, it is necessary to have an understanding of the sequence of events concerning Mr. Saeed's attempts to sponsor his wife.
[4] Mr. Saeed's own visa application was filed in December of 1999. It is common ground that at the time he filed his application, Mr. Saeed was not married. Mr. Saeed was interviewed in New York City in October of 2000. According to the CAIPS notes maintained in relation to Mr. Saeed's case, Mr. Saeed said in his interview that he was single, and had no plans to marry.
[5] On October 18, 2000, Mr. Saeed signed a statutory declaration which included, amongst other things, the undertaking that he would advise the Canadian Consulate-General in New York, in writing, should there be any change in his marital status.
[6] Mr. Saeed was married on March 26, 2001. On July 26, 2001, his visa was granted and Mr. Saeed was landed on August 28, 2001. The Record of Landing completed on that date records that Mr. Saeed was still single. Mr. Saeed says that he was not asked about his marital status at the Port of Entry.
[7] In March of 2002, Mr. Saeed applied to sponsor his wife and infant son. In February of 2003, Mr. Saeed's sponsorship application was refused by a visa officer. The visa officer found that Mr. Saeed's wife was not a member of the family class, as she had not previously been examined.
[8] Mr. Saeed then appealed this decision to the IAD.
The IAD's Decision
[9] The IAD did not hold an oral hearing in this case, but instead asked for written representations as to why Mr. Saeed's appeal should not be dismissed on the grounds that his wife appeared to be excluded by the operation of section 117(9)(d) of the Immigration and Refugee Protection Regulations.
[10] Section 117(9)(d) of the Immigration and Refugee Protection Regulations provides:
117. (9) No foreign national may be considered a member of the family class by virtue of their relationship to a sponsor if
(d) the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
[11] Following the receipt of submissions from both Mr. Saeed and the Minister, the IAD allowed the appeal, finding that Mr. Saeed had verbally advised the visa officer that he was getting married. The IAD further concluded that, having become aware of Mr. Saeed's marriage plans, the officer breached the duty of procedural fairness owed to Mr. Saeed by not informing him of the grave consequences that would flow from not having his spouse examined.
Issues
[12] The Minister raises two issues on this application. The Minister says that the IAD erred in making its factual finding that Mr. Saeed told the visa officer that he was getting married. The Minster says that the IAD also erred in finding that procedural fairness required that the officer advise Mr. Saeed of the consequences of not having his wife examined.
Was the IAD's Finding of Fact Patently Unreasonable?
[13] The parties are in agreement that a finding of fact made by the IAD is only reviewable if it is patently unreasonable.
[14] The Minister submits that the IAD's finding that Mr. Saeed verbally advised the visa officer that he was getting married is patently unreasonable as it is not supported by the evidence. Further, the Minister says that the IAD erred by failing to address and weigh the sworn evidence before it that directly contradicted its conclusion. In this regard, the Minister relies on the decisions of this Court in Atwal v. Canada (Secretary of State), [1994] F.C.J. No. 1113 and Gourenko v. Canada (Solicitor General), [1995] F.C.J. No. 682.
[15] Mr. Saeed argues that there is no obligation on a decision-maker to mention every document entered into evidence, and that the failure of the IAD to mention specific documents that were before it does not mean that it did not take the documents into account.
[16] In this case, the information before the IAD included letters written by Mr. Saeed and by his representative, as well as a statutory declaration from the visa officer, attaching the CAIPS notes relating to Mr. Saeed's case.
[17] In Mr. Saeed's March 20, 2003 letter, he indicates that he 'informed the immigration office' of his marriage by applying to sponsor his wife and child. His sponsorship application was filed in March of 2002. There is no suggestion in this letter that the immigration authorities were advised of Mr. Saeed's intention to marry at any time prior to March of 2002.
[18] In contrast, a letter written by Mr. Saeed's immigration consultant in July of 2003 says that Mr. Saeed informed the immigration office in Islamabad about his impending marriage. A subsequent letter from the consultant written in August of 2003 expands on this, indicating that Mr. Saeed did not speak to the visa officer in person, but to whoever it was who answered the phone. According to the August letter, the individual at the other end of the phone told Mr. Saeed that there wasn't enough time to deal with the issue, and that Mr. Saeed should sponsor his wife once he got to Canada. The letter does not specify when this conversation is alleged to have taken place, nor does Mr. Saeed indicate who he spoke to.
[19] While conceding that he should have notified the immigration office of the change in his marital status in writing, Mr. Saeed nevertheless submits that the immigration authorities had actual knowledge of his marriage.
[20] In his statutory declaration, the visa officer deposes that there is no record of Mr. Saeed ever advising the visa post in Islamabad of his intention to marry. This is borne out by a review of the CAIPS notes.
[21] In addressing this issue, the IAD simply stated that "[I]t is clear from the documents filed, that [Mr. Saeed] did advise the visa officer that he was getting married."
[22] With the greatest of respect to the IAD, the record before the Board was far from clear on this point. The only information before the IAD to this effect was the unsworn, eleventh-hour submissions of Mr. Saeed's representative referring to a phone conversation with an unnamed individual at the Islamabad visa post on an unspecified date - a conversation that Mr. Saeed himself had never mentioned in his earlier submissions.
[23] In contrast, the Minister put sworn testimony before the IAD, along with contemporaneous records that directly contradicted Mr. Saeed's claim.
[24] It is true that the failure of an adjudicator to mention specific documents does not mean that he or she did not take the documents into account in coming to a decision: see Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102 and Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946.
[25] However, in this case, what was not mentioned by the IAD was sworn, case-specific documentary evidence that was directly relevant to a central issue in the case, and which directly contradicted the conclusion reached by the Board. In these circumstances, it was incumbent on the IAD to specifically address this evidence, and, if it chose not to accept it, to give reasons for that decision.
[26] Having failed to do so, I can only conclude that the decision of the IAD was based upon a factual premise arrived at without regard to all of the material before it. As such, the IAD's finding that Mr. Saeed advised the immigration authorities of his marriage was patently unreasonable.
[27] This finding was central to the IAD's decision. As a result, the decision cannot stand.
The Procedural Fairness Issue
[28] The Minister's procedural fairness argument is predicated upon the assumption that the visa officer was aware of Mr. Saeed's marriage. Having concluded that the IAD erred in making such a finding, it is unnecessary to address this argument.
Conclusion
[29] For these reasons, the application is allowed. The decision of the IAD is set aside, and the matter remitted to a different member of the IAD for redetermination.
Certification
[30] 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 differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10042-03
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
MUZAFFAR SAEED
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 26, 2004
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
APPEARANCES:
ANGELA MARINOS FOR THE APPLICANT
MICHAEL KORMAN FOR THE RESPONDENT
SOLICITORS OF RECORD:
MORRIS ROSENBERG
DEPUTY ATTORNEY GENERAL OF CANADA
TORONTO, ONTARIO FOR THE APPLICANT
OTIS & KORMAN
BARRISTERS & SOLICITORS
TORONTO, ONTARIO FOR THE RESPONDENT
FEDERAL COURT
Date: 20041027
Docket: IMM-10042-03
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
MUZAFFAR SAEED
Respondent
REASONS FOR ORDER AND ORDER