Why did the officer/manager close a clear case of marriage fraud? Why did he decide to close a file rather than investigate? Perhaps it has to do with his erroneous understanding of the threshold to write a section 44 report in the first place:
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Q MR. SHARMA: Is it your understanding that an examination is not a necessary prerequisite for an officer to prepare and transmit a report?
A I do believe that is correct. An examination could mean many things. It's usually related to the port of entry.
Q Yes. You have written Section 44 reports in the past?
A Yeah.
Q What's the threshold to write a Section 44 report?
A Reasonable probable grounds to believe, is our evidentiary standard -- or balance of probability, sorry. Different things for different delegations.
Q Let's break that up. Let's deal just with misrepresentation because that's what this deals with.
A Right.
Q So what is the threshold?
A Balance of probabilities on a misrep, I believe. I would need to refer directly to the manuals to confirm that, but I believe that's the case.
Q It is your testimony today that to write or refer a report, the officer would have to be satisfied, on a balance of probabilities, that the allegations are true?
A Yes.
Q I will put it to you, Mr. Martin, that that's not the threshold. I will put to you, sir, that the legislation of Section 44 and your manuals only indicate that the threshold is if the officer is of the opinion that the permanent resident may be inadmissible.A Is that a question?
Q I will put it to you that you are wrong.
A Okay.
Q I will put it to you that you ascribed a higher threshold than what is in the legislation or in your manuals.
MS. LEE: Are you talking about specifically this case?
MR. SHARMA: Yes.
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If CBSA is only writing reports dealing with marriage fraud where those allegations meet their assessment (on a balance of probabilities) then very few reports will be written. The fact of the matter is, of course, that that is not the relevant standard.
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Q MR. SHARMA: But it is your testimony today that an officer would have to be satisfied, on a balance of probabilities, that the allegations are true, to write and refer the report. That is your testimony?
A I see where you're going now, but yeah, at the admissibility hearing, I believe, the balance of probabilities, the officer usually meets that standard because of that.
Q You would agree that the balance of probabilities is a much higher threshold than if the officer is of the opinion?
A I'm not an expert on this, but that makes sense.
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