Date: 20051207
Docket: IMM-2719-05
Citation: 2005 FC 1663
Ottawa, Ontario, the 7th day of December 2005
Present: The Honourable Chief Justice Lutfy
BETWEEN:
Kanagasingam RAJARATNAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant is a Canadian and a Hindu Tamil originally from Sri Lanka. He challenges by way of judicial review the dismissal by the Immigration Appeal Division ("IAD") of his appeal from a negative decision concerning the genuineness of his marriage to another Sri Lankan whom he wished to sponsor for permanent residence in Canada. The legal validity of the marriage is not in issue.
[2] The applicant was represented by counsel before the Immigration Appeal Division, a lawyer other than the one representing his interests in this proceeding.
[3] The principal submission in this application for judicial review is that the member of the Immigration Appeal Division failed to observe natural justice and procedural fairness in at least two ways: (a) by interfering with the orderly presentation of the applicant's case; and (b) by making negative credibility findings without allowing the applicant to respond to certain contradictions.
[4] The first issue concerns neither bias nor the apprehension of bias with respect to the IAD member. Rather, the applicant argues that a suggestion made by the member disrupted the hearing unduly and, as a result, the applicant was not afforded procedural fairness.
[5] Towards the end of the first day of the two-day hearing, it became apparent that the religious part of the marriage had not yet been completed and that the marriage had yet to be consummated. The applicant was the only witness that had been heard on the first day; the testimony of his wife was to be received by telephone conference on another occasion.
[6] Against this background, before adjourning the hearing, the member proposed to the applicant that in light of the evidence that had been heard to date, and without prejudging further
testimony, he consider withdrawing his appeal. It is useful to recite at length the intervention of the presiding member:
PRESIDING MEMBER: ... Would you not concur that until such time as the tali ceremony is complete -- and we're not talking about legal validity here.
[COUNSEL]: Yeah, yeah.
PRESIDING MEMBER: -- that they're not in a genuine relationship here in the sense that it's already established and that it is -- in other words, would you be of the perspective that, at a minimum, there's a genuine intent but beyond that we don't have anything?
[COUNSEL]: I know --
PRESIDING MEMBER: Here's why I'm suggesting this to you. I'm opening this up to you --
[COUNSEL]: Yes.
PRESIDING MEMBER: -- as opposed to -- and I'm not prejudging what I would hear still, or even the questions that could be posed --
[COUNSEL]: Mm-hmm.
PRESIDING MEMBER: -- I'm opening up to you to consider this. If in fact they haven't lived as husband and wife and if in fact they don't have a conjugal relationship, then would you be inclined to, after receiving instructions, have a withdrawal of this appeal -- and [counsel], then what would be your position in terms of the withdrawal? And the benefits of course to the appellant are if there is a withdrawal, there is no res judicata in terms of a marriage assessment and the genuineness of the regulation -- if the appeal fails and the determination is that the applicant doesn't fall within Regulation 4, you'll have a negative decision to contend with if, in fact, it is his intention to reside with her permanently. Suppose he goes back, performs the tali, lives with her and then proceeds accordingly, you may have a negative decision to overcome.
On the other hand, if the appellant chooses to withdraw his appeal and finalize the ceremony such that there is a conjugal relationship, then you wouldn't have that negative decision to overcome. On the other hand, if it is your position that conjugality is already established simply by holding hands and kissing and all that, and if you are of the view that conjugality is an essential component of a genuine marriage, then you can proceed. Do you follow what I'm saying?
[7] The transcript discloses that the applicant's counsel was surprised by the suggestion that the merits of the appeal were substantially weaker than she may have thought. After a short recess, she received three additional days to consider the matter. In the end, the applicant concluded that he should continue with his appeal and not take up the proposal of the member.
[8] The second day of the hearing was scheduled two months later. The applicant's IAD counsel never questioned the propriety of the member's intervention during this two-month interval nor upon the resumption of the hearing.
[9] I am not satisfied that the member's intervention unduly disrupted the presentation of the applicant's case. There is no indication in the transcript that the applicant's IAD counsel was of this view. The presiding member's proposal, on my review of the record, was not perceived as undue pressure by the applicant or his IAD counsel. The two-month period between the hearing dates was sufficient to overcome any distraction or surprise caused by the member's intervention. The member's failure to allow the suggestion of withdrawing the appeal to have been made by the Minister's counsel is not, in the circumstances of this case, a reviewable error.
[10] Similarly, I have reviewed the transcript, keeping in mind the applicant's arguments that the presiding member's interruptions compromised a fair hearing. I have not been able to reach such a conclusion. It was not inappropriate for the presiding member to invite direct responses. His tendency, from time to time, to ask supplementary questions of the witness before the direct examination or cross-examination was complete, was neither so frequent nor so intensive as to prevent a fair hearing. At no time did the IAD counsel for the applicant ever complain. Her failure to do so, even if it may not be a bar in asserting that the hearing was not fair, is in my view indicative that there was no undue disruption in the presentation of the applicant's case.
[11] The presiding member's interventions fall far short of the standard of "gross interference" set in Kumar v. Canada (Minister of Employment and Immigration), [1988] 2 F.C. 14 (C.A.) and Reginald v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 523, 2002 FCT 568. Rather, while they may be characterized as "energetic", the presiding member's interventions, in the context of the hearing as a whole, did not deny the applicant natural justice: see Mahmoud v. Minister of Citizenship and Immigration, 2005 FC 1308 at paras. 10-11; Mihajlovics v. Minister of Citizenship and Immigration, 2004 FC 215 at para. 28; and Chamo v. Minister of Citizenship and Immigration, 2005 FC 1219 at paras. 12-13.
[12] The applicant's second principal submission is that he was not confronted with the contradictions upon which a negative credibility finding was made.
[13] On the second day of the hearing, the applicant's wife was examined by telephone conference after the applicant completed his testimony. In his affidavit in this proceeding, the applicant acknowledged the significant contradictions that became apparent between his testimony and that of his wife concerning when and where the consummation of the marriage took place. The applicant attributes his inconsistent answers, which preceeded those of his wife, to the manner in which the questions were asked.
[14] It was immediately after the testimony was completed and during oral submissions that the applicant's IAD counsel requested that the applicant be given an additional opportunity to clarify the record. This was after the applicant had heard his wife's testimony. The request was refused. In my view, it was open to the IAD member, in the exercise of his discretion concerning the conduct of the hearing, to rule as he did. The genuineness of the marriage and the credibility of the witnesses were contentious issues throughout the hearing.
[15] For these reasons, this application for judicial review will be dismissed. I agree with the parties that this proceeding raises no question of serious importance for certification.
ORDER
This application for judicial review is dismissed.
"Allan Lutfy"
_
CHIEF JUSTICE
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2719-05
STYLE OF CAUSE: Kanagasingham RAJARATNAM v. THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: November 10, 2005
REASONS FOR ORDER
AND ORDER BY: CHIEF JUSTICE LUTFY
DATED: December 7, 2005
APPEARANCES:
Ms. Nicole Hainer FOR THE APPLICANT
Ms. Caroline Christiaens FOR THE RESPONDENT
SOLICITORS OF RECORD:
Elgin, Cannon & Associates FOR THE APPLICANT
Vancouver, British Columbia
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada