Date: 20040127
Docket: IMM -1842-03
Ottawa, Ontario, this 27th day of January, 2004
PRESENT: The Honourable Justice von Finckenstein
BETWEEN:
NATALY, OLGA GAVRILOV
Applicant
AND
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(delivered from the bench in Toronto on January 26TH and
subsequently written for clarification and precision)
[1] The central issue in this case is whether the applicant's marriage with Mr. Rylott is genuine or if it is a marriage for the purpose of her gaining admission to Canada.
[2] The onus is on the applicant to convince an Immigration Officer that her marriage is bona fides. See: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. In this case, the applicant filed a marriage certificate and her application form stated a) that she and her husband lived at the same address, and b) that her husband fully supported her and her daughter.
[3] The Immigration Officer dismissed her application on the basis that, as her husband worked in Kitchener, the couple lived apart during the week and were together only on weekends. According to the Immigration Officer's affidavit, she did not consider an earlier humanitarian and compassionate decision by another officer in this matter nor the materials on the FOSS file.
[4] This being the case, the Officer had no reason to rule that this was a marriage for immigration purposes only. Such a conclusion, based on the sole fact that the applicant's husband worked in Kitchener and only lived with his wife and her daughter on weekends, is unwarranted If, however, she had based her decision on other facts displayed in the FOSS file, this should have been stated in her affidavit.
[5] While it is undisputed that it is the function of an Immigration Officer to weigh the evidence and that this court should not re-weigh the evidence when hearing an application for judicial review (Legault v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 457, 4 F.C. 358 (F.C.A.)), an Immigration Officer must act reasonably when exercising her function. In this day and age, it is unreasonable to automatically consider a marriage suspect merely because the husband and wife work in different towns during the week.
[6] The application is accordingly allowed. The decision is set aside and the matter is referred back to another Immigration Officer for reconsideration.
ORDER
THIS COURT ORDER'S that:
1. The application is accordingly allowed.
2. The decision is set aside and the matter is referred back to another Immigration Officer for reconsideration.
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1842-03
STYLE OF CAUSE: OLGA GAVRILOV et al
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY JANUARY 26, 2003
REASONS FOR ORDER
AND ORDER BY: VON FINCKENSTEIN, J.
DATED: JANUARY 27, 2004
APPEARANCES BY:
Mr. Ed Carrigan
For the Applicant
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD:
Mr. Ed Carrigan
Barrister & Solicitor
1475 Bathurst Street, Suite 100
Toronto, Ontario
M5P 3G9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent