ALEM TESFU GARZA Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2018 FC 155

Date: 20180209 Docket: IMM-687-17 Citation: 2018 FC 155 Calgary, Alberta, February 9, 2018 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:ALEM TESFU GARZAApplicantand THE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Alem Tesfu Garza (the “Applicant”) seeks judicial review of a decision of the Immigration and Refugee Board, ImmigrationAppeal Division (the “IAD”) dated December 2, 2016, dismissing his appeal from a decision of an Officer refusing his sponsorshipapplication for his wife. [2] The Applicant, a permanent resident of Canada who is originally from Eritrea.

He met his wife in 2008 and married her in 2011. TheOfficer refused the sponsorship application on the grounds that the marriage was entered into for the purpose of acquiring status inCanada for his wife’s daughter. [3] The IAD heard evidence from the Applicant, his wife and his step-daughter. In dismissing the appeal, the IAD concluded that themarriage was entered into primarily for immigration purposes, contrary to section 4(1) of the Immigration and Refugee ProtectionRegulations, SOR/2002-227. [4] The decision of the IAD is reviewable on the standard of reasonableness; see the decision in Dobson v.

Canada (Citizenship andImmigration), 2011 FC 121.

According to the decision in Dunsmuir v New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, thereasonableness standard requires that a decision be transparent, justifiable and intelligible, and falls within a range of possible acceptableoutcomes. [5] The issue of alleged bias is an aspect of procedural fairness and is reviewable on the standard of correctness. [6] Considering the evidence before the IAD, as contained in the Certified Tribunal record including the transcript of the proceedingsbefore the IAD, I am not satisfied that the decision under review meets that standard. [7] In my opinion, the IAD imposed stereotypical views about the marriage of mature persons and failed to reasonably consider theevidence presented about the relationship between the Applicant and his wife, including the history of the development of thatrelationship. [8] I agree with the submissions of the Applicant that the IAD mischaracterized the evidence about his financial position and that thismischaracterization may have led to unjustified factual findings. [9] I do not find support for any allegations of bias, but the ultimate conclusion of the IAD does not meet the applicable standard orreview and this application for judicial review will be allowed. [10] The matter will be remitted to a differently constituted panel of the IAD for redetermination, no question for certification arising.

JUDGMENT for IMM-687-17 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the matter is remitted to a differently constitutedpanel of the Immigration Appeal Division, no question for certification arising. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD

DOCKET: IMM-687-17 STYLE OF CAUSE: ALEM TESFU GARZA v. MCI PLACE OF HEARING: toronto, ontario DATE OF HEARING: november 23, 2017 JUDGMENT AND reasons: HENEGHAN J. DATED: February 9, 2018 APPEARANCES : Leigh Salsberg For The Applicant Khatidja Moloo-Alam For The Respondent SOLICITORS OF RECORD : Sapru & Salsberg Barristers and Solicitors Toronto, Ontario For The Applicant Deputy Attorney General of Canada For The Respondent