Category: Immigration Appeal Division Jurisdiction

The Court found that the visa officer could refuse an application of a sponsorship even after an appeal being allowed by the IAD if new facts arose relevant to the application that were not considered by the IAD.

The Court set aside a decision that the applicants marriage was not genuine: [32] The Court agrees with the applicant. The Court finds that Gill, above, is directly on point. In that case, Justice Barnes cautioned the Board to be diligent in assessing the genuineness of a marriage relationship: ¶6. When the Board is required to examine the genuineness of a marriage under ss. 63(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, it must proceed with great care because the consequences of a mistake will be catastrophic to the family. That is particularly obvious where the family includes a child born of the relationship. The Board's task is not an easy one because the genuineness of personal relationships can be difficult to assess from the outside. Behaviour that may look suspicious at first glance may be open to simple explanation or interpretation. An example of this from this case involves the Officer's concern that the wedding photos looked staged and the parties appeared uncomfortable. The simple answer, of course, is that almost all wedding photos are staged and, in the context of an arranged marriage, some personal awkwardness might well be expected. The subsequent birth of a child would ordinarily be sufficient to dispel any lingering concern of this sort. Similarly, the Board's concern that Ms. Gill rushed into a second marriage can perhaps be explained by the fact that her divorce may have substantially reduced her prospects for remarriage. [33] In this case, the Board did not doubt the existence of the child – the applicant had submitted medical documents and was also obviously pregnant. The Board doubted the paternity of the child. The Court agrees with the applicant that the Board’s decision does not demonstrate sufficient reason to doubt the applicant’s testimony that her husband was the child’s father. The applicant provided evidence of the pregnancy and the due date, she also provided evidence that she was with her husband in India during the relevant time period. There was no evidence of any other relationship in which she may have been involved at the time. While it is open to the Board to doubt such things as a child’s paternity, the Board will have to provide reasons to allow both the parties and a reviewing Court to understand how it reached that conclusion. In this case, the Board’s reasons are simply that the Board does not find these witnesses to be credible. The conception of the applicant’s child coincided exactly with the time when the applicant was on her second visit to India to allegedly be with her new husband. Accordingly, the Court must conclude that the board’s reasons for doubting the paternity of the applicant’s child were not reasonable, or at least not adequately explained.

The Court found a breach of natural justice: 36 In my opinion, the IAD breached the principles of procedural fairness by failing to provide applicant's counsel with an opportunity to fully address the substantive issues in the appeal. The IAD requested submissions with respect to the stay issue and adjourned the hearing without allow-ing counsel to address the merits of the appeal.

The Court set aside a refusal to reopen: 15 I have considerablsympathy for the predicament facing the IAD here. It received a nearly il-legible hand-written note from Mr. Skerritt alleging a failure to receive notice. To its credit, the IAD characterized the note as an application to reopen the appeal and it seriously considered whether it ought to do so. However, the downe side of the IAD's generosity from Mr. Skerritt's point of view is that he never had a chance to put better evidence (e.g., an affidavit) or fuller submissions to the IAD before it dealt with the question whether it should reopen the appeal.

The Court upheld a finding there was no conjugal and only a romantic relationship. The issue was one of intention and the tribunal properly applied the factors in M. v H.

The Court found no reviewable error in the conclusion by the Appeal Division that when there were credibility issues related to the genuineness of the relationship the failure of the applicant to testify could result in an adverse inference.

The Court held that the applicant who was sentenced to 18 months plus 11 months for time served had a sentence of more than two years and had no right to appeal to the Appeal Division.

The Court set aside a decision dismissing a deportation where the Minister and counsel had made a joint submission for a stay: [18] Having received the joint submission albeit unexpectedly, the tribunal breached procedural fairness by rejecting it outright without asking for further input. The applicant in these circumstances was not given a fair hearing. The consequences on the applicant were significant. Clearly, a review of the terms and conditions of the proposed stay which included a requirement he not commit any criminal offences, make reasonable efforts to seek and maintain full time employment, engage in and continue psychotherapy, submit to random urine drug testing and respect court orders (which would include respecting the restraining order) address the tribunal’s concerns. The tribunal provided no analysis and did not even refer to the proposed terms and conditions. [19] Second, it is also clear the tribunal did not give serious consideration to the joint submission. Again, it provided no analysis of its terms and dismissed the joint submission in a perfunctory manner.

The issue of the exercise of discretion with respect to the residency requirement is not one which has received much attention. This indeed is the first case I am aware of where the court has done a detailed analysis of the factors. It is also noteworthy for its careful application of Khosa to the question of the standard of review. .

It is an excellent assessment of the role of the court in reviewing the exercise of discretion of the Immigration Appeal Division post Khosa. Also the court accepts the relevance of the person's relationship to a gang in the assessment of the circumstances which might mitigate in favour of deportation. These issues are not ones which are often addressed by the court and as such Moreover, the conclusion that the danger a person poses indirectly and not directly is relevant is also a novel point.