Date: 20050504
Docket: A-363-04
Citation: 2005 FCA 160
CORAM: LINDEN J. A.
SEXTON J. A
EVANS J. A.
BETWEEN:
GNANASEHARAN SELLIAH, NIRMALA GNANASEHARAN
and MAHISHAN GNANASEHARAN
Appellants
(Applicants)
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
and SOLICITOR GENERAL OF CANADA
Respondents
(Respondents)
Heard at Toronto, Ontario, on May 4, 2005.
Judgment delivered from the Bench at Toronto, Ontario, on May 4, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN J.A.
Date: 20050504
Docket: A-363-04
Citation: 2005 FCA 160
CORAM: LINDEN J. A.
SEXTON J. A
EVANS J. A.
BETWEEN:
GNANASEHARAN SELLIAH, NIRMALA GNANASEHARAN
and MAHISHAN GNANASEHARAN
Appellants
(Applicants)
and
THE MINISTER OF CITIZENSHIP & IMMIGRATION
and SOLICITOR GENERAL OF CANADA
Respondents
(Respondents)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario on May 4, 2005)
[1] We are of the view that the applications Judge made no reviewable error and that this appeal must be dismissed without costs.
[2] The issue raised in the certified question, dealing with the standard of proof in cases such as this one, has been recently decided by this Court inLi v. M.C.I. (2005) F.C.J. 1 and we have not been persuaded to depart from that decision.
[3] On the issue of the duty to clarify and to confront an applicant where there is some ambiguity or conflict in the evidence, while such a duty may exist in some circumstances, we are not convinced that it applies in this case. The most that can be said here is that the Officer may have misapprehended the evidence in thinking that there was a discrepancy between two letters. In our view, when all of the evidence is considered as a whole, this error does not warrant our intervention.
[4] As for the new evidence offered to the officer after the decision had been made, but before notice of that decision was received by the applicant, we are not inclined to interfere. Though not expressly provided for in the legislation, an application for reconsideration on the basis of that new evidence could have been made by the applicant following receipt of the notice of the decision.
[5] It is therefore, not necessary for us to decide the functus officio issue in this case.
"A. M. Linden"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-363-04
STYLE OF CAUSE: GNANASEHARAN SELLIAH, NIRMALA
GHANASEHARAN, MAHISHAN GNANASEHARAN
Appellants
(Applicants)
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE SOLICITOR GENERAL OF CANADA
Respondents
(Respondents)
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 4, 2005
REASONS FOR JUDGMENT
OF THE COURT: (LINDEN, SEXTON, EVANS, JJ.A.)
DELIVERED FROM THE
BENCH BY: LINDEN J.A.
Barabara Jackman FOR THE APPELLANT
Marcel Larouche
Sharon Stewart Guthrie FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jackman & Associates
Toronto, ON FOR THE APPELLANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT