Federal Court


Administrative Law

JUDICIAL REVIEW
Evidence not properly considered in its totality and decision unreasonable

Sponsor was Canadian citizen. Sponsor’s spouse was citizen of India. Marriage was arranged by families and took place in December 2009, two days after parties met. Spouse applied for permanent residence however application was rejected by officer on basis that marriage was not genuine and was entered into primarily for purpose of acquiring permanent residence in Canada contrary to s. 4(1) of Immigration and Refugee Protection Regulations (Can.). Appeal was rejected by Immigration Appeal Division (IAD) in June 2011. Sponsor gave birth to child in June 2012, which was confirmed by genetic testing to be that of spouse, sponsor and spouse were in daily contact by Skype, sponsor had travelled to India for two trips of several months duration and was planning to travel for five month trip to India. Spouse applied for permanent residence again in November 2011, and application was again refused on ground first decision was final and conclusive and application was res judicata.  Despite via voce evidence of spouses on second appeal. IAD dismissed second appeal on basis that matter was res judicata or, in alternative, that marriage was entered into for primary purpose of acquiring status under Immigration and Refugee Protection Act. Sponsor applied for judicial review. Application granted. In adopting reasoning of previous decision, IAD did not address viva voce evidence of parties at second appeal.  Nor did IAD address new, fresh evidence adduced by sponsor beyond stating it had considered all evidence before it. No analysis was provided although  there was clear evidence that might alter outcome if properly considered in its totality i.e. evidence of continuing relationship, two to three trips to India of several months in duration, and birth of  child. While IAD had discretion to decide evidence put forward did not amount to decisive evidence, type of evidence adduced in this matter has been held to be fresh, decisive evidence in previous judicial reviews of spousal-sponsorship applications. IAD was obliged to address why it did not constitute such evidence in present case beyond simply adopting reasons of previous panel. Failure to do so indicated that evidence was not properly considered in its totality and decision of IAD was unreasonable.

Sandhu v. Canada (Minister of Citizenship and Immigration) (Sep. 2, 2014, F.C., Luc Martineau J., File No. IMM-1309-14) 245 A.C.W.S. (3d) 188.

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