Date: 19990927
Docket: IMM-382-98
| IN THE MATTER OF the Immigration Act, R.S.C., 1985, s.82.3, C.1-2 and Amendments and Regulations thereto; |
| AND IN THE MATTER OF a decision of the Immigration and Refugee Board, Appeal Division; |
| AND IN THE MATTER OF the Canadian Charter of Rights and Freedoms. |
BETWEEN:
JEYARAJAN RATNASABAPATHY
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (Appeal Division) dated December 18, 1997 wherein the Appeal Division determined that the appeal be dismissed for lack of jurisdiction.
[2] The Appeal Division stated that the issue before them was jurisdictional. Specifically, whether there was before the panel a refusal of an application for permanent residence of a member of the family class.
FACTS
[3] The applicant is a Canadian citizen, who sponsored the application for permanent residence in Canada of his wife and her two children. Their applications were refused by the Canadian High Commission in New Delhi, by a letter dated December 13, 1995, for the reasons that the applicant"s wife was not the spouse of the applicant, as defined in subsection 2(1) of the Immigration Regulations, 1978 , and one of her son, Mathanaraj, was not a dependent son of his wife, as defined in the same section.
[4] The decision was appealed to the Immigration and Refugee Board Appeal Division (the Tribunal). The Tribunal decided on December 18, 1997, that it did not have jurisdiction to hear the appeal, because the applicant"s wife is not a member of the family class, as she is not the spouse of the applicant, as defined in section 2 of the Immigration Regulations, 1978 .
APPEAL BOARD DECISION
[5] The Appeal Board determined:
| The evidence shows that, on the balance of probabilities, the applicant had a spouse living at the time of her marriage to the appellant". |
[6] In arriving to this conclusion, the Appeal Board relied upon the interview notes in which the applicant explained that she had been married before, that a marriage certificate had existed but was lost, and that she could not obtain a divorce from her first husband because he could not be found. The Appeal Board also relied on other documents which reflect this marriage, namely the Register of Births respecting the applicant"s two children, the applicant"s Sri Lanka Refugee Identification document issued by the State of India, and the applicant"s passport.
[7] The Appeal Board concluded:
| Try as it may, the panel was unable to conclude, in the face of such evidence, that the applicant Ramachandran Kassippalli had simply been living in a common-law relationship and were not married. |
| The appellant testified that marriages in Sri Lanka must be registered in order to be valid and submitted that the lack of corroboration of the existence of a marriage registration indicates that the applicant was never married to Ramachandran Kassippalli. However, as noted by the respondent"s counsel, the appellant has no specialized knowledge concerning marriage laws in Sri Lanka upon which this panel may rely. Absent some direct evidence on that point, the panel is left to speculate as to the law in Sri Lanka, which it cannot do. |
[8] On the other hand, the Appeal Board further stated:
| Even if the panel could come to a different conclusion, there is the matter of whether the appellant"s marriage to the applicant complied with section 7(1) of the HMA. Again, on the evidence adduced and on the balance of probabilities, it does not, and, for such reason also, the applicant cannot be found to be the "spouse" of the appellant. |
[9] The Appeal Board concluded:
| The applicant is not a member of the family class as she is not the spouse of the appellant, as defined in section 2 of the Immigration Regulations, 1998, for the reason that, on the evidence adduced and on the balance of probabilities, her marriage to the appellant does not comply with section 5(i) of the Hindu Marriage Act, 1995, or, alternatively, section 7(1) thereof. The Immigration Appeal Division, therefore, does not have jurisdiction to hear this appeal, which is dismissed. |
ANALYSIS
[10] The Appeal Board was confronted with contradicting evidence on whether the applicant was free to remarry the appellant, depending on the existence of a previous marriage.
[11] The testimony of the applicant herself together with documents, lead the Board to believe that a previous marriage existed notwithstanding the absence of corroboration by a marriage registration.
[12] The applicant"s testimony to the fact that his wife was never married is not conclusive evidence as the applicant has no specialized knowledge of marriage laws in India.
[13] Nevertheless, his testimony was long and detailed about the situation of his wife and he gave reasonable explanations on the marital situation of his wife before their marriage.
[14] It is surprising that the appellant"s wife Bhavani Jayarajan never testified in person nor through an affidavit to explain the situation surrounding her first marriage in the 1972.
[15] In my view, the Appeal Division relied on very few evidence to arrive at the conclusion that the first marriage in 1972 was still valid and even existed given the testimony of the appellant on that.
[16] On the other hand, the Appeal Division decided to assess the second marriage with the appellant and decided that the applicant failed in demonstrating that she was married to the appellant even though there were some evidence and a certificate demonstrating the existence of this marriage.
[17] I am wondering why the Appeal Division even considered the second marriage and the events surrounding this particular marriage.
[18] Indeed, as it was admitted by counsel for the respondent before the Court, even though the Appeal Division would have considered the second marriage as valid, the Appeal Division would have found that it does not have jurisdiction to hear this appeal given that the appellant was already married in 1972 and was not divorced.
[19] We cannot get it both ways. In my view, it was not reasonable for the Appeal Division to address the two issues at the same time. The two marriages were two events and were both important.
[20] As soon as the Appeal Board has decided that the first marriage in 1972 was valid, it was not necessary for the Appeal Division to assess the events surrounding the second marriage. All those facts become irrelevant to the real issue which is whether the first marriage is valid.
[21] In my view, the Appeal Board, in doing so, committed a reviewable error.
[22] I consider that the Board should reassess the applicant"s application in light of this decision.
[23] For these reasons, the decision under judicial review is set aside and the matter referred for reconsideration before a different panel.
[24] Neither party has suggested the certification of a question.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 27, 1999