Patry-Shala v. Canada (Minister of Citizenship and Immigration), (2015) 476 F.T.R. 1 (FC)

JudgeMartineau, J.
CourtFederal Court (Canada)
Case DateFebruary 09, 2015
JurisdictionCanada (Federal)
Citations(2015), 476 F.T.R. 1 (FC);2015 FC 187

Patry-Shala v. Can. (M.C.I.) (2015), 476 F.T.R. 1 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] F.T.R. TBEd. FE.052

Isabelle Patry-Shala (demanderesse) v. Le Ministre de la Citoyenneté et de l'Immigration (défendeur)

(IMM-5987-14; 2015 CF 187; 2015 FC 187)

Indexed As: Patry-Shala v. Canada (Minister of Citizenship and Immigration)

Federal Court

Martineau, J.

February 16, 2015.

Summary:

Patry-Shala, a Canadian citizen, married Shala, an Albanian from Kosovo, in Kosovo. Patry-Shala returned to Canada. Shala applied for permanent residence as a member of the family class. The Immigration Appeal Division of the Immigration and Refugee Board dismissed the application on the basis that the marriage was not genuine and Shala had entered into the marriage primarily for the purpose of acquiring a status in Canada and therefore was not a spouse under s. 4(1) of the Immigration and Refugee Protection Regulations. Patry-Shala's appeal was dismissed. She applied for judicial review.

The Federal Court dismissed the application.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - Patry-Shala, a Canadian citizen, married Shala, an Albanian from Kosovo, in Kosovo - Patry-Shala returned to Canada - Shala's application for permanent residence as a member of the family class was dismissed - The Immigration Appeal Division of the Immigration and Refugee Board dismissed Patry-Shala's appeal on the basis that the marriage was not genuine and Shala had entered into the marriage primarily for the purpose of acquiring a status in Canada and therefore was not a spouse under s. 4(1) of the Immigration and Refugee Protection Regulations - Patry-Shala applied for judicial review, asserting that the behaviour of the member of the Board who heard the appeal gave rise to a reasonable apprehension of bias - She asserted that the member adopted an intimidating and hostile attitude towards her and Shala, and that the member was aggressive, rolled her eyes, waved her arms, and gave her the impression that she was not neutral and impartial - She asserted that the Board acted as a judge and accuser by assisting counsel for the Minister in her work - She asserted that since the signs of bias surfaced gradually, her failure to raise bias at the hearing did not imply a waiver of the rules of natural justice - The Minister asserted that there was a strong presumption that administrative decision makers discharged their duties appropriately and with integrity - The Minister argued that Patry-Shala bore the heavy evidentiary burden of rebutting that presumption, and the Board was allowed to show signs of frustration - Further, the fact that the Board conducted a zealous examination did not allow the court to find a reasonable apprehension of bias - Moreover, most of the questions that the Board asked were open-ended questions, and all the questions were relevant - The Board did not make any unwarranted or inappropriate comments - Likewise, counsel for the Minister did not notice anything unusual in the member's behaviour - Further, Patry-Shala waived her right to argue a reasonable apprehension of bias by not raising it at the first available opportunity - The Federal Court dismissed the application - The court agreed with the Minister's general reasoning - Even if Patry-Shala had not waived her right to argue a reasonable apprehension of bias, she had not shown that the member's behaviour gave rise to a reasonable apprehension of bias - See paragraphs 10 to 15.

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Waiver - [See Administrative Law - Topic 2088 ].

Administrative Law - Topic 2100.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Evidence and proof - [See Administrative Law - Topic 2088 ].

Aliens - Topic 1287

Admission - Immigrants - Sponsorship - Members of the family class - Patry-Shala, a Canadian citizen, married Shala, an Albanian from Kosovo, in Kosovo - Patry-Shala returned to Canada - Shala's application for permanent residence as a member of the family class was dismissed - The Immigration Appeal Division of the Immigration and Refugee Board dismissed Patry-Shala's appeal on the basis that the marriage was not genuine and Shala had entered into the marriage primarily for the purpose of acquiring a status in Canada and therefore was not a spouse under s. 4(1) of the Immigration and Refugee Protection Regulations - Patry-Shala applied for judicial review, asserting that, inter alia, the Board's finding were reviewable because they were based on conjecture and did not consider the explanations given to the Board - The Federal Court rejected the assertion and dismissed the application - The Board did not cast doubt on Patry-Shala's good faith and did not reject her evidence, including the submissions to the effect that she and Shala were in contact, that they lived as husband and wife when Patry-Shala went to visit him, that she supported him financially and that they had talked about future plans - However, the Board concluded that Shala was not credible and that his intention was to enter into the marriage for the purpose of obtaining a status in Canada - Although some of the inconsistencies or contradictions noted by the Board might seem minor at first glance, the court had to consider their cumulative effect, which on the whole undermined Shala's credibility - The Board's findings of fact regarding the genuineness of the marriage and Shala's intentions were reasonable - See paragraphs 4 to 9.

Aliens - Topic 1287.2

Admission - Immigrants - Sponsorship - Spouse or common law partner in Canada class - [See Aliens - Topic 1287 ].

Aliens - Topic 1290.1

Admission - Immigrants - Sponsorship - Application for - Appeals - [See Administrative Law - Topic 2088 ].

Aliens - Topic 4088

Practice - Hearings - Constitution of board - Bias - [See Administrative Law - Topic 2088 ].

Cases Noticed:

Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35; 1998 CanLII 8667 (T.D.), refd to. [para. 7].

Gill v. Canada (Minister of Citizenship and Immigration) (2012), 424 F.T.R. 40; 2012 FC 1522, refd to. [para. 8].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 9].

Kim v. Canada (Minister of Citizenship and Immigration), 2008 FC 1291, refd to. [para. 9].

Chaudhry v. Canada (Minister of Citizenship and Immigration) (2006), 299 F.T.R. 78; 2006 FC 1015, refd to. [para. 10].

Chamo v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 732; 2005 FC 1219, refd to. [para. 11].

Anguiano Acuna v. Canada (Minister of Citizenship and Immigration) (2006), 303 F.T.R. 40; 2006 FC 1222, refd to. [para. 11].

Hulej v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 68; 2014 FC 283, refd to. [para. 11].

Guermache v. Canada (Minister of Citizenship and Immigration) (2004), 257 F.T.R. 272; 2004 FC 870, dist. [para. 13].

Counsel:

Patrick-Claude Caron, for the applicant;

Sébastien Dasylva, for the respondent.

Solicitors of Record:

Caron Avocats, Montreal, Quebec, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Montreal, Quebec, for the respondent.

This application was heard at Montreal, Quebec, on February 9, 2015, by Martineau, J., of the Federal Court, who delivered the following judgment on February 16, 2015.

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1 practice notes
  • Seraphin v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 323
    • Canada
    • Federal Court (Canada)
    • June 3, 2015
    ...may be extended to the assessment of the purpose of the marriage ( Patry-Shala v Canada (Minister of Citizenship and Immigration) , 2015 FC 187 at paras 8-9). I am also satisfied that the IAD applied the correct standard of proof under subsection 4(1) of the IRPR, namely, the balance of pro......
1 cases
  • Seraphin v. Canada (Minister of Citizenship and Immigration), [2015] F.T.R. Uned. 323
    • Canada
    • Federal Court (Canada)
    • June 3, 2015
    ...may be extended to the assessment of the purpose of the marriage ( Patry-Shala v Canada (Minister of Citizenship and Immigration) , 2015 FC 187 at paras 8-9). I am also satisfied that the IAD applied the correct standard of proof under subsection 4(1) of the IRPR, namely, the balance of pro......

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