Date: 20040518
Docket: IMM-6017-02
Ottawa, Ontario, this 18th day of May, 2004
Present: The Honourable Justice James Russell
BETWEEN:
PHUNG DANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of a decision by a panel of the Immigration Appeal Division of the Immigration and Refugee Board ("Appeal Division") dated November 14, 2002 ("Decision") that dismissed the appeal of Phung Dang ("Applicant") of a refused sponsored landing application for his wife, Thi Ton Nguyen ("Wife").
BACKGROUND
[2] The original application was refused by the visa officer for a number of reasons. For example, the Applicant submitted a sponsorship on his Wife's behalf in 1999, but did not meet her until April 2000. The visa officer also noted that there were limited outings before the marriage, and that the Wife had provided a contradictory statement in the Spouse and Fiancée Questionnaire with respect to when she was first introduced to the Applicant. In addition, the officer had felt that there were very few letters between the Applicant and his Wife and it appeared that the Wife's sister in Canada had made the telephone calls to the Wife.
[3] The visa officer also found that the Applicant and his Wife submitted fraudulent wedding photographs. Both the Applicant and his Wife then provided what the visa officer determined to be implausible claims relating to this serious credibility issue.
[4] Finally, the visa officer noted that there were discrepancies between the accounts of Applicant and his Wife as to how and when they had met.
[5] The Appeal Division found that the discrepancies as noted by the visa officer were more consistent with the lack of a genuine relationship rather than mistakes in interpretation. The Appeal Division agreed with the visa officer's determination and dismissed the appeal.
RELEVANT LEGISLATION
[6] Section 4(3) of the Immigration Regulations, 1978 stipulates a two-prong test that must be met before an application can be refused:
| 4. (1) Subject to subsections (2) and (3), the family class is hereby prescribed as a class of immigrants for the purposes of subsection 6(1) of the Act.
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(3) The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse. |
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4. (1) Sous réserve des paragraphes (2) et (3), la catégorie des parents est une catégorie réglementaire d'immigrants pour l'application du paragraphe 6(1) de la Loi. ...
(3) La catégorie des parents ne comprend pas le conjoint qui s'est marié principalement dans le but d'obtenir l'admission au Canada à titre de parent et non dans l'intention de vivre en permanence avec son conjoint. |
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ISSUES
[7] The Applicant raises the following issues:
A. Did the Appeal Division err in law by failing to give meaningful consideration to the totality of the evidence?
B. Did the Appeal Division err in law and on the face of the record by failing to mention and take into account the minor child in this matter?
C. Did the Appeal Division err on the face of the record when it indicated the Applicant only stayed 10 days in Vietnam when in fact he stayed with his wife for 6 weeks?
D. Did the Appeal Division err in law and on the face of the record in inferring that the presence of altered photographs would prevent the exchange of letters from demonstrating a genuine marriage?
E. Did the Appeal Division err in law in finding that the Wife was not credible because the Appeal Division placed undue weight on the presence of 2 altered photographs?
ARGUMENTS
Applicant
Generally
[8] The Applicant claims that he and his Wife did not have a traditional wedding ceremony because his mother-in-law resides in Canada and they wanted to have their marriage in Canada. Another reason why they did not have a traditional wedding ceremony was because their marriage is the second for both of them. The Applicant notes that he and his Wife had a dinner for 25 people after their marriage.
[9] The Applicant argues that the Decision was rendered after June 28, 2002, which was the date of the coming into force of IRPA. The Applicant submits that the Appeal Division had already determined that he and his Wife were not credible due to the submission of altered photographs, but there was no finding on credibility at the actual appeal. The Applicant submits that the Appeal Division did not look beyond the issue of the altered photographs to determine the credibility of both the Applicant and his Wife.
[10] The Applicant says that he and his Wife have an on-going relationship as a family.
A. Did the Appeal Division err in law by failing to give meaningful consideration to the totality of evidence?
[11] The Applicant notes that in Trinh v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 728 (T.D.), Campbell J. indicated that the appropriate test when making a determination as to whether a marriage is genuine is laid out in Joseph Horbas and Imelda Horbas v. Minister of Employment and Immigration and Secretary of State for External Affairs, [1985] 2 F.C. 359 (T.D.) at 369:
1. Was the marriage entered into primarily for the purpose of gaining the wife's admission to Canada as a member of the family class?
2. Did the Applicant's wife have any intention of residing with the Applicant?
[12] The Applicant further notes that Campbell J. found that, in determining whether the first and second parts of the test are met, the Appeal Division has to evaluate and determine the totality of the evidence with respect to each part of the test.
[13] The Applicant submits that the Appeal Division failed to assess the totality of the evidence and, instead, focussed unduly on the fact that two photographs had been altered.
B. Did the Appeal Division err in law and on the face of the record by failing to mention and take into account the minor child in this matter?
[14] The Applicant submits that the Appeal Division erred by failing to take into account the minor child of the Applicant and by not mentioning her at any point in the Decision.
C. Did the Appeal Division err on the face of the record when it indicated the Applicant only stayed 10 days in Vietnam when, in fact, he stayed with his Wife for 6 weeks?
[15] The Applicant submits that this factor was a major consideration for the Appeal Division, and the Decision cannot stand because of this erroneous finding of fact which was central to the Decision.
D. Did the Appeal Division err in law and on the face of the record in inferring that the altered photographs prevented the exchange of letters from demonstrating a genuine marriage?
[16] The Applicant submits that the Appeal Division erred in finding that the two altered photographs were grounds for finding that the numerous letters exchanged between the Applicant and his Wife did not prove a genuine relationship.
[17] The Applicant submits that the letters should have been assessed in light of all the circumstances of the case, and not just in relation to the photographs.
E. Did the Appeal Division err in law in finding that the Wife was not credible because it placed undue weight on the presence of 2 altered photographs?
[18] The Applicant submits that the Appeal Division placed excessive weight on the photographs to support an adverse finding of credibility against the Wife.
Respondent
Standard of Review
[19] The Respondent submits that, as indicated by Blais J. in Lao v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1908 (T.D.), the standard of deference of a final conclusive finding of the Appeal Division is high:
19. The applicant relies on the case of Tandy Electronics Ltd., supra to determine the standard of review of the Appeal Division. While the Ontario Labour Relations Board is similar to the Appeal Division in that they are both highly specialized tribunals, the question of the standard of review of the Immigration Appeal Division of the Immigration and Refugee Board has been considered in the Supreme Court of Canada decision of Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875. In this case, Abbott J., quoting Lord MacMillan in D.R. Fraser and Co. Ltd. v. Minister of National Revenue, [1949] A.C. 24, at p.36, said:
The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.
20. The court will thus not intervene lightly in the findings of the Appeal Division.
[20] The Respondent further submits that the standard of review of a particular finding of fact by the Appeal Division that a marriage is not bona fide is patent unreasonableness. The Respondent says that other factual findings, such as credibility findings, are also subject to this standard (Grewal v. Canada (Minister of Citizenship and Immigration), 2003 FC 960 at para. 5 (T.D.)).
A. Did the Appeal Division err in law by failing to give meaningful consideration to the totality of evidence?
[21] The Respondent submits that the Appeal Division in its Decision clearly addressed both prongs of the Horbas test:
[3] ... The totality of the evidence in this case establishes, on a balance of probabilities, that the applicant entered into the marriage primarily for the purposes of immigrating to Canada as a member of the family class and that, at the time of the marriage, she did not intend to reside permanently with the appellant.
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[5] ... The panel finds that the discrepancies [viz. when and why the applicant and appellant first met] are more consistent with the lack of a genuine relationship than mistakes in interpretation.
[6] ... His actions contradict his claim that the applicant and himself "felt very warm to each other."
[7] ... the panel does not accept that the letters are genuine in the sense that they reflect a relationship of substance.
[8] ... For the reasons stated above the panel also finds on a balance of probabilities that the applicant did not intend to live permanently with the appellant. Given her lack of credibility ... She has a [sic] close relatives (mother and sister) in Canada that she can live with instead of the appellant.
B. Did the Appeal Division err in law and on the face of the record by failing to mention and take into account the minor child in this matter?
[22] The Respondent notes that the Applicant did not make any submissions in respect of the minor child other than briefly noting that she exists and that she professes love for him after seeing him once in 2000. The Respondent submits that the Appeal Division cannot be faulted for not expressly noting the minor child as a significant factor in its assessment of the Applicant's case. As indicated by Létourneau J.A. in Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (F.C.A.), the Appeal Division can only consider what an appellant puts before it:
10. I am of the view that the Board cannot be faulted for not having addressed in its reasons the fact that Tamils are not allowed to reside in Colombo for more than three days. It appears from a version of the transcript of the hearing before the Board that the respondent was represented by counsel at the hearing and never raised that issue with the Board. The burden was on the respondent to establish that living in Colombo was not an internal flight alternative because of the alleged three-day policy. One would have expected her to raise that issue if it was really a serious concern to her. But she did not and the Board was entitled to assume that this was a non-issue especially as she had lived there for four years before departing for Canada in 1997.
11. In addition, no clear evidence was adduced by the respondent who had the burden of showing that the three-day policy applied to her. She did not even make an argument about it and her representative never even alluded to that in her submissions to the Board. In this context, the Board cannot be blamed for having refrained from engaging in pure speculation about something which, evidently, was of little, if no concern, to the respondent. The Board is performing a difficult function under time constraints and stressful conditions. A failure by a claimant to fulfill his obligations and assume his burden of proof cannot be [page169] imputed to the Board so as to make it a Board's failure.
[23] The Respondent further submits that it is not clear how an alleged on-going relationship between the Applicant and the minor child is relevant to either part of the Horbas test.
C. Did the Appeal Division err on the face of the record when it indicated the Applicant only stayed 10 days in Vietnam when, in fact, he stayed with his Wife for 6 weeks?
[24] The Respondent concedes this mistake but submits it as immaterial given the broad array of other factors that the Appeal Division used to find that the claim should fail.
D. Did the Appeal Division err in law and on the face of the record in inferring that the presence of altered photographs prevented the exchange of letters from demonstrating a genuine marriage?
[25] The Respondent submits that the Appeal Division found the doctored photographs to be non-credible to such an extent that they tainted the rest of the evidence submitted by the Applicant.
E. Did the Appeal Division err in law in finding that the Wife was not credible because the Appeal Division placed undue weight on the presence of 2 altered photographs?
[26] The Respondent submits that weight is not a justiciable issue in a judicial review (Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346 at para. 1 (F.C.A.))
ANALYSIS
[27] Of the various grounds advanced by the Applicant for reviewable error the only issue that I find material and requiring consideration is the allegation that the Appeal Division did not consider the totality of the evidence and that, in particular, the Appeal Division allowed its emphasis on the fraudulent photographs to distract it from assessing other evidence in its own right. The central concern here is the way that the Appeal Division may have neglected to assess the many letters written between the Applicant and his Wife and the three letters from the 12-year-old daughter to the Applicant.
[28] The Applicant says that these letters have the ring of truth about them, that they were obviously not written merely to support the application because there are too many of them, and that they were given no credence at all by the Appeal Division because the Appeal Division was completely focussed on the fraudulent photographs.
[29] The letters and the fraudulent photographs are yoked together by the Appeal Division in para. 7 of the Decision:
7. Given counsel for the appellant's claim that there was strong evidence of communication between the appellant and the applicant, the panel reviewed such evidence carefully. There were a few letters from 1998, but for the most part the letters match the ebb and flow of the application. The letters were written when they were needed in support of the application. Given that the appellant and the applicant submitted fraudulent photographs, the panel does not accept that the letters are genuine in the sense that they reflect a relationship of substance.
[30] This appears to amount to a general negative credibility finding by the Appeal Division based upon the fraudulent photographs that colours the Appeal Division's assessment of the letters. But the Appeal Division says quite clearly that the letters were brought to its attention by counsel and that it reviewed them "carefully." So there is no reason to suspect that the letters were not considered. The Appeal Division concludes that the "letters were written when they were needed in support of the application." This is a finding of fact. It is not necessarily a finding of fact that the Court would have made, but I cannot say that it is perverse or patently unreasonable. This is especially the case when the fraudulent photographs are examined in conjunction with the testimony given by the Applicant and his Wife as to how the photographs came into being and were made part of the application. The Applicant said he had seen the photographs earlier but hadn't realized they were fake. He also said the following about his Wife's reaction when she first saw the photographs:
Q. So what was your Wife's reaction when the photographer handed her these photos of you and her amongst people that don't mean anything to either of you?
A. My wife saw that my presence and her presence was in the picture and she thought it was genuine. So she submitted them to the Visa Port. She did not realize that they were fake or anything at all.
[31] Such an explanation (when the photographs are viewed) merely compounds the fraud. It is hardly surprising that the Applicant and his Wife lost credibility over this issue and that this affected the Appeal Division's assessment of the letters. But this does not mean the letters were not considered or that the Appeal Division's conclusions regarding their weight are not supported by the evidence.
[32] Taken as a whole, the Decision also reveals other concerns of the Appeal Division that support its conclusion that the relationship was not genuine. The grounds raised by the Applicant go to weight and credibility issues and the Court should not interfere with the Decision on this basis.
[33] The tragedy is that, viewing the evidence as a whole, this may well have been a genuine marriage and the Court may well have come to a different conclusion to the one reached by the Appeal Division. The fraudulent photographs look like an attempt to bolster an application that may not have needed them. But this is not a reason to interfere with the Decision. In my opinion, there was no reviewable error.
[34] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven days of receipt of these Reasons for Order. Each party will have a further period of three days to serve and file any reply to the submission of the opposite party. Following that, an Order will be issued.
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"James Russell" |
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JFC |
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6017-02
STYLE OF CAUSE: PHUNG DANG v. MCI
PLACE OF HEARING: Toronto, Ontraio
DATE OF HEARING: March 9, 2004
REASONS FOR ORDER: Russell J.
DATED: May 18, 2004
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor Toronto, Ontario |
FOR THE APPLICANT |
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Toronto, Ontario |
FOR THE RESPONDENT |