Date: 19990728
Docket: IMM-5420-98
BETWEEN:
BEATA JOLANTA MAIRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SHARLOW J.
[1] The decision under review was made by the Supervisor of Admissions at the Winnipeg Citizenship and Immigration Centre, and is essentially a reconsideration of a decision of another officer who rejected the applicant"s request to be allowed to apply for landing from within Canada on the basis of humanitarian and compassionate considerations.
[2] The initial decision was the subject of a previous application for leave to commence a judicial review, which was denied. The reconsideration was based on the information on file plus additional evidence, a letter from a person who had administered a polygraph examination to the applicant and her husband after the first decision was rendered.
[3] The duty of the officer reconsidering the decision was to consider all of the information in the record and the additional information. He was entitled to take into account the previous decision, provided he kept an open mind and considered all the evidence afresh. I infer that he did that, there being no indication to the contrary.
[4] The basis of the first decision and the second decision was that the marriage of the applicant was not a bona fide marriage. There is evidence in the file that is capable of supporting that conclusion. That evidence consists of notes of officials made at various times that purport to record the results of interviews with the applicant on various occasions in the past in which she appeared to give inconsistent information. Because those notes are extrinsic evidence that was in all likelihood an important basis for the decision, the officer had an obligation to give the applicant an opportunity to adduce evidence relating to the accuracy of the notes or to provide explanations. That was not done. That is sufficient to quash the decision and refer it back for reconsideration by another officer.
[5] In the reconsideration the applicant must be afforded a fair opportunity to respond to all of the apparent inconsistencies in the documents on file. That may be done by means of an interview, but an interview is not essential.
[6] Because the decision is to be reconsidered, it may be useful if I comment on some of the other arguments raised in this case.
[7] There is some indication that the decision was based largely on the fact that the marriage occurred very shortly after the applicant was told that she would be obliged to leave Canada. It appears that this was taken as a fact that supported the conclusion that the marriage was not bona fide. However, the timing of the marriage is equally consistent with a bona fide marriage motivated by a desire to avoid forced separation by facilitating immigration procedures for the applicant. Thus the timing of the marriage, in and by itself, is not logically capable of supporting the conclusion that there is no bona fide marriage. A decision based solely on that ground would be perverse.
[8] The evidence relating to the polygraph is relevant and must be considered, but the weight to be put on that evidence is entirely within the discretion of the officer reconsidering the decision.
ORDER
The application for judicial review is allowed. The decision of the Supervisor of Admissions is quashed and the question is referred back for reconsideration by a different officer. No costs are awarded.
"Karen R. Sharlow"
Judge
Winnipeg, Manitoba
July 28, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-5420-98
STYLE OF CAUSE: Beata Jolanta Maire v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: July 28, 1999
REASONS FOR ORDER
and ORDER OF THE COURT: The Honourable Madame Justice Sharlow
DATED: July 28, 1999
APPEARANCES
Baerbel Langner-Pennell for the Applicant
Tracey Harwood-Jones for the Respondent
Department of Justice
Winnipeg, Manitoba
SOLICITORS OF RECORD
Zaifman Associates for the Applicant
5th floor, 191 Lombard Avenue
Wpg., MB, R3B 0X1
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent