Date: 20040930
Docket: IMM-3739-03
Citation: 2004 FC 1338
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
HARJIT SINGH MANN
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board, Refugee Protection Division (the "IAD"), dated May 7, 2003, wherein the IAD allowed an appeal from a visa officer's refusal to grant the respondent's wife, Narinder Kaur Mann, an immigrant visa.
[2] The applicant requests an order setting aside the IAD's decision and referring the respondent's appeal back to a different IAD panel for re-determination.
Background
[3] The respondent, Harjit Singh Mann (the "respondent") is a permanent resident of Canada who purported to marry his first cousin, Narinder Kaur Mann ("Ms. Mann") in India on July 17, 1999. Ms. Mann is a citizen of India.
[4] Both the respondent and Ms. Mann are members of the Jat caste of the Sikh faith.
[5] The respondent sought to sponsor Ms. Mann's application for landing in Canada as his spouse, pursuant to the Immigration Regulations, 1978, S.O.R./78-172 and the Immigration Act, R.S.C. 1985, c. I-2.
[6] By letter dated July 31, 2000, a visa officer refused Ms. Mann's application for permanent residence, stating that her marriage to the respondent was not bona fide and was null and void as being contrary to the Hindu Marriage Act, 1955, 1955, Act No. 25 (India).
[7] The respondent successfully appealed the visa officer's refusal to the IAD, which overturned the visa officer's decision on the basis that the Hindu Marriage Act did recognize the marriage of first cousins where, as here, a customary or cultural practice was established.
[8] The applicant, the Minister of Citizenship and Immigration (the "Minister") sought judicial review of the IAD's decision on the basis that the correct standard of proof to be applied was not a "balance of probabilities," but rather was whether it was "clearly proved" through "clear and unambiguous" evidence of a custom sanctioning marriage between first cousins.
[9] Campbell J. granted the Minister's application for judicial review (see Canada (Minister of Citizenship and Immigration) v. Mann, [2003] F.C.J. No. 262 (QL), 2003 FCT 193), and ordered that the respondent's appeal be re-determined by the same IAD panel member in accordance with the directions of the Court.
[10] The IAD held a hearing on April 28, 2003 to re-determine the respondent's appeal and decided that applying the "clear and unambiguous" evidence test, revealed that the respondent's marriage to Ms. Mann was not contrary to the Hindu Marriage Act based on a customary exception.
[11] By this application for judicial review, the Minister seeks to set aside the IAD's decision and to have the respondent's appeal re-determined by a different panel.
Reasons of the Immigration and Refugee Board (Immigration Appeal Division)
[12] The IAD identified the key issue to be decided as whether there is clear evidence of a Jat Sikh custom that allows first cousins to marry each other. If so, the respondent's union would not be contrary to the Hindu Marriage Act and Ms. Mann would qualify for a visa based on membership in the family class. Citing Canada (Minister of Employment and Immigration) v. Taggar, [1989] 3 F.C. 576 (C.A.), the IAD stated that the onus was on the respondent (appellant in the IAD proceeding) to demonstrate clear evidence of the existence of the custom on which he sought to rely.
[13] The respondent attempted to have two witnesses qualified as experts in order to establish that such a custom exists. The IAD refused to qualify the first, Ms. Neeta Balinder Johar, as an expert. Although it acknowledged that Ms. Johar may be knowledgeable about the Punjabi culture, the IAD stated that she had conducted only limited research and study of the relevant issues and was not an expert in Jat Sikh marriages. The IAD did qualify the second witness, Dr. Deepika Puri, as an expert based on her qualifications and extensive study of Jat Sikh marriages. The IAD accepted that Dr. Puri was qualified to give an expert opinion even though she was not a legal scholar or otherwise legally trained.
[14] The Minister sought to have Mr. K. K. Jarth, a visa officer at the Canadian High Commission in New Delhi, accepted as an expert witness. The IAD refused to do so, noting that although Mr. Jarth was knowledgeable about various cultures and customs in India, he was not an expert with respect to Jat Sikh culture, customs, or practices.
[15] The IAD stated that it accepted the evidence of Ms. Johar and Mr. Jarth as people knowledgeable in the matters at issue, but not as expert witnesses.
[16] The IAD set out subsection 3(a) of the Hindu Marriage Act as follows:
(a) the expression "custom" and "usage" signify any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law among Hindus in any local area, tribe, community, group or family:
Provided that the rule is certain and not unreasonable or opposed to public policy; and
Provided further that in the case of a rule applicable only to a family it has not been discontinued by the family;
[17] With this provision as guidance, the IAD held that the respondent had provided "clear and unambiguous evidence that there is an ancient custom in the Jat Sikh community that allow first-degree cousin[s] to marry" based on the following:
1. The legal opinion of Javed Razack, a practising lawyer, which relied on the view of Dr. Paras Diwan (Professor of Laws at Punjab University) that Punjab customs recognize marriages between first cousins;
2. Dr. Paras Diwan's commentary on Punjab customary law, which states that some tribes recognize marriage between people who are within prohibited degrees of relationship, such as first cousins;
3. The testimony of Dr. Puri, Mr. Jarth, and Ms. Johar that Jat Sikh communities are very liberal in their marriage views; and
4. Dr. Puri's testimony that marriages between first-degree cousins in the Jat Sikh communities are ancient, clear, unambiguous, and have been noted for about 30 to 40 years.
[18] The IAD held that the respondent was entitled to rely on custom to validate his marriage under Indian law and, therefore, that the visa officer's refusal of Ms. Mann's application for permanent residence was unlawful.
The Minister's Submissions
[19] In setting out the statutory framework of Indian marriage law, the Minister submits that paragraph 3(g)(iv) of the Hindu Marriage Act specifically prohibits marriage between first cousins, while subsection 5(iv) permits first cousins from a particular social group to marry if it can be established that there existed a "custom or usage" governing the parties that provides a legally recognized "customary" exception to the statutory prohibition. Subsection 3(2) provides guidance on the criteria for a "custom of usage". The Minister interprets subsection 4(a) of the Hindu Marriage Act as stating that no new customs could be recognized at common law post-1955.
[20] The Minister makes three primary arguments in support of its position that the IAD's decision must be set aside. First, the Minister contended that the IAD erred in its qualification of expert witnesses. Specifically, the Minister argued that its witness, Mr. Jarth, should have been accepted as an expert and the respondent's witness, Dr. Puri, should not have been. Secondly, the Minister argued that the IAD erred by accepting weak and inherently contradictory evidence as "clearly proving" that the practice of Jat Sikh first-cousin marriages was accorded legal recognition at Indian law. Thirdly, the Minister argued that the IAD did not resolve the parties' conflicting interpretation of subsection 4(a) of the Hindu Marriage Act, thereby failing to meet the adequacy of reasons requirement set out by the Federal Court of Appeal in VIA Rail Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25.
[21] I will briefly expand on each of the Minister's main areas of argument.
[22] Qualification of Experts
The Minister submitted that the IAD erred by qualifying as an expert, a sociologist with no legal training, Dr. Puri, and by refusing to qualify as an expert an Indian administrative officer trained in Indian law, Mr. Jarth.
[23] The Minister submitted that the core issue before the IAD was whether there existed a custom of usage permitting marriage of first cousins within the respondent's particular Jat Sikh community that would be recognized by Indian legal authority for the purpose of subsection 5(iv) of the Hindu Marriage Act.
[24] The Minister submitted that the determination of foreign law in Canadian courts is a question of fact to be proven by expert evidence. Like other findings of fact, the Minister states that findings of foreign law will only be overturned by a Court on judicial review if there was a palpable and overriding error.
[25] Whether a particular witness is a properly qualified expert, in the Minister's view, is a question of law which should be reviewed by this Court on a standard of correctness.
[26] Furthermore, the Minister submitted that in general, the only qualified experts in a particular foreign law are professionals who work in the foreign jurisdiction in a capacity that requires them to have an expertise in law.
[27] In the Minister's view, the IAD erred by qualifying expert witnesses not on the basis of their expertise in Indian law, but based on their experience with Jat Sikh cultural practices. The Minister submitted that evidence regarding the practice or custom of first-cousin marriage, while interesting, does not answer the core question before the IAD, namely, whether such a custom is legally recognized pursuant to the Hindu Marriage Act.
[28] The Minister submitted that Mr. Jarth, an immigration officer with the Canadian High Commission in New Delhi, India, should have been qualified as an expert in Indian marriage law sufficient to determine whether Jat Sikh first-cousin marriages would be recognized by Indian judicial authority. Mr. Jarth holds a bachelor of laws degree from the University of New Delhi and has applied his knowledge of Indian law to determine the legal validity of marriages for the purpose of the former Immigration Act, supra.
[29] Mr. Jarth testified in voir dire that he surveyed Indian matrimonial law by reading legal texts, periodicals, and cases, was very knowledgeable about local marriage practices and had dealt with five to seven Jat Sikh first-cousin marriage cases while working at the Canadian High Commission. Mr Jarth stated that he was unaware of any recognized custom in Indian law that found first-degree cousin marriages valid.
[30] The Minister further submitted that the IAD erred by qualifying Dr. Puri as an expert because she could offer only anecdotal evidence of the practice of first cousins marrying but had no expertise or knowledge regarding whether Indian judicial authorities would recognize Jat Sikh first-cousin marriages at law.
[31] Custom was not Clearly Proven
The Minister contended that the IAD erred in deciding that the respondent had provided "clear and unambiguous" evidence that the practice of Jat Sikh first-cousin marriages was (a) ancient; (b) uniform and continuous; (c) certain; (d) not illegal or immoral, unreasonable or opposed to public policy, the test under the Hindu Marriage Act.
[32] First, it is submitted that the respondent's witness, Dr. Puri, provided contradictory evidence regarding whether first-cousin marriage practice was "ancient". The Minister contended that Dr. Puri contradictorily testified that the practice had been occurring for centuries, since thirty to forty years ago, and had only been established during the last twenty years. It was therefore perverse, in the Minister's view, for the IAD to conclude that the marriage practice in question was ancient based on this inherently inconsistent evidence.
[33] Second, the Minister argued that it was unreasonable for the IAD to conclude that the respondent had established the "continuity" branch of the test for custom or usage when Dr. Puri herself had testified that first-cousin marriages had been happening for centuries and also had a more recent origin. The Minister submitted that it was perverse for the IAD to ignore this evidence of discontinuity in the alleged practice.
[34] Third, the Minister argued that the IAD erred in concluding that the practice was "uniform and certain," given the respondent's own evidence that first-cousin marriages were generally frowned upon and were only recently gaining in acceptance. Further, the respondent failed to cite any judicial precedents that demonstrated the legal or cultural acceptance of first-cousin marriages and the text referenced by the respondent was an ambiguous source that does not constitute "clear and unambiguous" proof. In the Minister's view, the strong difference of opinion between the parties' witnesses regarding the existence and acceptability of the alleged practice is evidence in and of itself that it is not uniform or certain.
[35] Fourthly, the Minister submitted that the Board erred in ignoring the effect of subsection 4(a) of the Hindu Marriage Act, which states that no new custom could be recognized at law after 1955, when that legislation was enacted. Since Dr. Puri's evidence suggested that first-cousin marriage has its recent origin in the last 30 to 40 years, the Minister submitted that the IAD was barred from reaching the conclusion it did, given the supremacy of the Hindu Marriage Act over new customs.
[36] Finally, the Minister cites K. Kamkshi v. K. Mani (1970), 2 M.L.J. 477 at 478 for the proposition that three instances of first-cousin marriage in a Dravidian Brahmin community was insufficient to establish a legally recognized custom under the Hindu Marriage Act. It is argued, therefore, that the IAD erred by accepting the weak anecdotal evidence of Ms. Johar and Dr. Puri as "clear and convincing" proof of the practice in question, given the small sample size in their studies and the weak nature of their evidence.
[37] Inadequacy of Reasons
Beyond the argument that the IAD erred by not concluding that subsection 4(a) of the Hindu Marriage Act served as a bar to legal recognition of a custom that came into existence following 1955, the Minister argued that it was an error for the IAD's decision to be silent on this issue. It is submitted, therefore, that the IAD's reasons do not satisfy the adequacy of reasons requirement articulated by the Federal Court of Appeal in VIA Rail, supra.
Respondent's Submissions
[38] The respondent agreed with the Minister that subsection 5(iv) of the Hindu Marriage Act is a customary exception to paragraph 3(g)(iv)'s general rule that first cousins are prohibited from marrying each other.
[39] Qualification of Experts
The respondent argued that the IAD did not err in qualifying Dr. Puri as an expert witness. Although it is conceded that whether a certain witness has the requisite experience is a question of law, the respondent maintains that Dr. Puri was a properly qualified expert within the meaning of the test set out in R. v. Mohan, [1994] 2 S.C.R. 9.
[40] The respondent disagreed with the Minister's argument that Dr. Puri was required to have legal training in order to be qualified as an expert. Since Dr. Puri was called to testify about Indian and Hindu marriage customs and practices and not Indian law, the respondent argued that it was proper for the IAD to qualify her as an expert.
[41] The respondent submitted that the Minister incorrectly characterized the main issue before the IAD as one of Indian law, when the true purpose of Dr. Puri's expert testimony was to guide the IAD in determining whether the custom of first-cousin marriage met the criteria set out in the Hindu Marriage Act. The main issue before the IAD, in the respondent's view, was the existing marriage and customary practices in India, not Indian law.
[42] The respondent also points out that Dr. Puri's sociological expertise has been recognized by the IAD in at least three previous cases involving Jat Sikh first-cousin marriages. Specifically, the respondent relied on Heneghan J.'s refusal to grant the Minister leave to commence judicial review proceedings in Minister of Citizenship and Immigration v. Harvinder Pal Bassi (6 October 2003) (IMM-944-03) (Federal Court), where the IAD relied on Dr. Puri's expert testimony to conclude that first-cousin marriage was clearly proved as a custom amongst the Jat Sikh caste.
[43] The respondent submitted that the IAD did not err in refusing to qualify Mr. Jarth as an expert in Jat Sikh culture, customs or practices. Although it is recognized that Mr. Jarth may be knowledgeable about India's various cultures and customs, he never specifically studied the Jat Sikh caste, had only limited contact with Jat Sikh first-cousin marriages, and gave unclear and uncertain testimony regarding his experience at the Canadian Embassy with such marriages. In the respondent's submission, the IAD did not commit a reviewable error regarding Mr. Jarth's expertise.
[44] Custom was Clearly Proven
The respondent agreed with the Minister that in order for a marriage practice to become recognized as a legal "custom or usage" it must meet the criteria set out in subsection 3(a) of the Hindu Marriage Act, namely, it must be (a) ancient; (b) continuous; (c) uniform and certain; and (d) not illegal or immoral, unreasonable, or opposed to public policy. The respondent also agreed that the evidence used to establish these criteria must be "clear and unambiguous."
[45] The respondent disputed that Dr. Puri's evidence regarding the origin of first-cousin marriages was inherently contradictory and contended that the Minister mischaracterized her evidence. Although legal texts and her own research show various opinions regarding the "ancientness" of first-cousin marriages amongst Jat Sikh's, the respondent submitted that Dr. Puri's testimony indicates that the ancient requirement of subsection 3(a) is met.
[46] Contrary to the Minister's argument, the respondent submitted that the IAD had a wealth of evidence before it capable of "clearly and unambiguously" establishing the existence of a Jat Sikh custom of first-cousin marriages. This evidence included legal texts, legal opinions, commentary, and expert testimony. The respondent contended that the Minister essentially disagreed with how the IAD weighed the evidence before it, which does not provide this Court with a basis to intervene. Since, in the respondent's view, the IAD considered all of the relevant evidence before it in good faith, did not reach its decision arbitrarily or based on irrelevant considerations, the Court should not re-evaluate the evidence or substitute its opinion for that of the IAD.
[47] Furthermore, the respondent submitted that the IAD was under no obligation to refer to every document that was before it and explain how it dealt with evidence contrary to its eventual conclusions.
[48] The respondent submitted that the Minister had not established that the IAD's conclusions were patently unreasonable, therefore this Court should uphold its decision.
[49] Effect of Subsection 4(a) of the Hindu Marriage Act
The respondent submitted that the plain and simple meaning of subsection 4(a) of the Hindu Marriage Act is not that urged by the Minister. Rather, the respondent stated that subsection 4(a) only extinguishes customs in place before the legislation was enacted and is not intended to prohibit the future development of new customs. Simply put, if any matter relating to the interpretation of Hindu law, custom, or usage has been dealt with in the Hindu Marriage Act, the legislation governs. Since subsection 5(iv) specifically provides for an exception based on the customary recognition of otherwise void marriages, subsection 4(a) has no application in this case.
[50] Mootness
In the alternative, the respondent argued that the issues raised by the Minister in this
proceeding are moot due to the coming into force of the Immigration and Refugee Protection Regulations, S.O.R./2002-227, ("IRPA Regulations"), subsection 117(1) of which broadens the family class for sponsorship purposes to include not only spouses but "conjugal partners." The respondent submitted that since Ms. Mann undoubtedly meets the definition of conjugal partner set out in section 2 of those Regulations, her application for a visa would now be approved. As such, the respondent argued that the Minister's litigation of this case is unnecessary and an abuse of process.
[51] Due to the Minister pursuing a case it must know is moot, and that in at least three other IAD cases Jat Sikh first-cousin marriage has been clearly proven, the respondent requests that this application be dismissed and that costs be awarded against the Minister.
Issues
[52] The issues in this case are:
1. Is this application moot?
2. Were the IAD's reasons for decision inadequate?
3. Did the IAD err in its qualification of expert witnesses?
4. Did the IAD err in concluding that the respondent's marriage was legally valid under the Hindu Marriage Act?
Relevant Statutory Provisions
[53] Pursuant to subsection 5(2) of the Immigration Regulations, 1978, supra, Canadian citizens and permanent residents are authorized to sponsor the application for landing of any member of the family class. Subsection 2(1) of the Regulations define "member of the family class" as follows:
|
"member of the family class", with respect to any sponsor, means
(a) the sponsor's spouse,
. . . |
"parent" À l'égard d'un répondant, l'une des personnes suivants:
(a) son conjoint;
. . . |
Analysis and Decision
[54] At the core of this case is the Hindu Marriage Act. The parties agree that before the IAD, just as before Canadian courts, foreign law is a matter of fact to be proven by expert evidence. The general prohibition regarding first-cousin marriage is found by reading together subsection 5(iv) and paragraph 3(g)(iv). Subsection 5 (iv) states that parties within certain degrees of relationship are prohibited from marrying:
5. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:
. . .
(iv) the parties are not within the degrees of prohibited relationship, unless the custom or usage governing each of them permits of a marriage between the two.
[55] Paragraph 3(g)(iv) states that:
3(g) "Degrees of prohibited relationship" - two persons are said to be within the "degrees of prohibited relationship" -
. . .
iv) if the two are . . . children of brother and sister or of two brothers or of two sisters.
[56] According to section 11, marriages solemnized in contravention of the requirements of section 5 are null and void.
[57] Also of importance is subsection 4(a) of the Hindu Marriage Act, which provides:
4. Save as otherwise expressly provided in this Act:
(a) any text, rule or interpretation of Hindu law of any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provisions is made in this Act;
. . .
[58] Issue 1
Is this application moot?
The respondent argued that the issues raised by the applicant were moot since the sponsorship scheme is now more lenient and includes common-law spouses and conjugal partners as members of the family class. The respondent argued that Ms. Mann's application for permanent residence certainly would be approved now and that the Minister's pursuit of this judicial review is an abuse of process.
[59] I cannot agree with this argument.
[60] It has been more than four years since Ms. Mann's sponsored application for permanent residence was filed under the former Immigration Act, supra, and Immigration Regulations, 1978, supra. Both the original visa officer's decision and the first appeal to the IAD were decided before the Immigration and Refugee Protection Act was in force. The simple fact that the replacement sponsorship process under IRPA is now more favourable to persons in Ms. Mann's position does not mean that her application would automatically be considered under the new scheme. Subsection 350(5) of IRPA Regulations dictates that when this matter was referred back to the IAD for re-determination, it was the former Immigration Act, supra and not the IRPA scheme that had to be applied:
|
350(5) If a decision of the Immigration Appeal Division made under the former Act is referred back by the Federal Court or Supreme Court of Canada for determination and the determination is not made before the date of the coming into force of this section, the Immigration Appeal Division shall dispose of the matter in accordance with the former Act. |
350(5) Il est disposé conformément à l'ancienne loi de toute décision prise par la section d'appel de l'immigration sous le régime de l'ancienne loi qui lui est renvoyée par la Cour fédérale ou la Cour suprême du Canada pour nouvel examen et dont il n'a pas été disposé avant l'entrée en vigueur du présent article. |
[61] Following the Minister's first successful judicial review application, Campbell J. referred the matter back to the IAD for re-determination. The IAD re-decided the matter on May 10, 2003, which was after IRPA came into force on June 28, 2002. Subsection 350(5) states that the re-determination is governed by the old scheme. Furthermore, it is clear that the Minister still has the right to apply for judicial review of IAD decisions that it believes are not legally justified, and that its application in this case does not constitute an abuse of the Court's process.
[62] For this reason, I am not prepared to find this proceeding moot. Furthermore, there is no evidence before the Court that Ms. Mann and the respondent have filed new applications under IRPA, and no case law has been cited to me that compels the conclusion that these proceedings have been rendered nugatory or irrelevant.
[63] Issue 2
Were the IAD's reasons for decision inadequate?
A leading case on the adequacy of reasons provided by administrative decision-makers is the Federal Court of Appeal decision in VIA Rail, supra, where Sexton J.A. stated for the Court at paragraphs 17 to 22:
The duty to provide reasons is a salutary one. Reasons serve a number of beneficial purposes including that of focussing the decision maker on the relevant factors and evidence. In the words of the Supreme Court of Canada:
Reasons, it has been argued, foster better decision making by ensuring that issues and reasoning are well articulated and, therefore, more carefully thought out. The process of writing reasons for decision by itself may be a guarantee of a better decision [Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at p. 845].
Reasons also provide the parties with the assurance that their representations have been considered.
In addition, reasons allow the parties to effectuate any right of appeal or judicial review that they might have. They provide a basis for an assessment of possible grounds for appeal or review. They allow the appellate or reviewing body to determine whether the decision maker erred and thereby render him or her accountable to that body. This is particularly important when the decision is subject to a deferential standard of review.
Finally, in the case of a regulated industry, the regulator's reasons for making a particular decision provide guidance to others who are subject to the regulator's jurisdiction. They provide a standard by which future activities of those affected by the decision can be measured.
The duty to give reasons is only fulfilled if the reasons provided are adequate. What constitutes adequate reasons is a matter to be determined in light of the particular circumstances of each case. However, as a general rule, adequate reasons are those that serve the functions for which the duty to provide them was imposed. In the words of my learned colleague Evans J.A., "[a]ny attempt to formulate a standard of adequacy that must be met before a tribunal can be said to have discharged its duty to give reasons must ultimately reflect the purposes served by a duty to give reasons."
The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.
[64] In the present case, the applicant argued that subsection 4(a) of the Hindu Marriage Act was a statutory bar to post-1955 customs functioning as exceptions to the general rule prohibiting first-cousin marriages. The respondent argued that subsection 4(a) only applied to customs that were in force immediately before the commencement of the Hindu Marriage Act. The respondent stated at paragraph 55 of his memorandum of argument:
With respect, it is the Respondent's submission that upon careful reading of the above section and upon giving it its "plain and simple" meaning, section 4(a), in fact, refers only to customs that have been "in force immediately BEFORE the commencement" of the Hindu Marriage Act. Consequently, the Respondent respectfully submits that section 4(a) applies only to customs that have been in place before the Act was enacted and that this section was not intended to prohibit any future development of new customs.
[65] The interpretation of this section is an important factor in issue in this case on which the IAD's reasons are silent. I am of the view that due to this silence, the IAD's reasons are inadequate when measured against the standard set out by the Federal Court of Appeal in VIA Rail, supra. Accordingly, I would allow the application for judicial review and refer the matter back for re-determination by a different panel.
[66] Because of my finding on Issue 2, I need not deal with the remaining issues raised by the applicant.
[67] The respondent did not wish to propose a serious question of general importance for my consideration.
[68] The applicant shall have seven days from the date of this decision to submit any proposed serious question of general importance for my consideration and the respondent shall have five days to make any submissions on that question.
"John A. O'Keefe"
J.F.C.
Ottawa, Ontario
September 30, 2004
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3739-03
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
- and -
HARJIT SINGH MANN
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 1, 2004
REASONS FOR ORDER OF O'KEEFE J.
APPEARANCES:
Jamie Todd
FOR APPLICANT
Mendel Green
FOR RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR APPLICANT
Green & Spiegel
Toronto, Ontario
FOR RESPONDENT