Date: 20011115
Court File No.: IMM-6290-00
Neutral Citation: 2001 FCT 1257
Ottawa, Ontario, this 15th day of November, 2001
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
VIET HUNG TRAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, a Canadian Citizen, is seeking judicial review of a decision of the Appeal Division of the Immigration and Refugee Board ("Appeal Division") dated November 14, 2000, which held that the appellant's wife, a citizen of Vietnam, 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 him.
[2] The applicant's evidence is that he returned to Vietnam in 1994 on the death of his mother and met his future wife. During this visit they met a few times at a café before the applicant returned to Canada but were not romantically involved. There was no communication between them from the time they met in 1994 until the applicant returned to Vietnam to visit his father in February 1997. During this visit they met by coincidence and started dating twice a week from February until May 1st, 1997, at which time the applicant proposed. On May 13th, the marriage was registered and the two were married on May 18th, 1997. The couple lived together for one week in the applicant's father's house before the applicant returned to Canada. The Applicant has not returned to Vietnam since to be with his wife.
[3] In the years leading up to his February 1997 visit to Vietnam, the applicant was involved in a sexual relationship with a certain Adrianna Tisko, a co-worker. He ended this relationship upon his return and saw her only on one occasion after the break up to give her a birthday gift that had already been purchased.
[4] In December 1997 the applicant sponsored his wife for permanent residence in Canada and the sponsored spouse applied for permanent residence in March 1998. A visa officer at the Canadian High Commission in Singapore refused the application finding her to be excluded from the Family Class by application of subsection 4(3) of the Immigration Regulations, 1978, SOR/78-1/72. This decision was appealed to the Appeal Division of the Immigration Refugee Board and a hearing was held on July 19, 2000 before Member Roger Boire. Member Boire released his decision on November 14, 2000, almost four months after the hearing.
[5] The applicant raises four issues in this judicial review that I will consider.
1. Does the onus of proof rest on the applicant in the case at bar?
2. Was a proper de novo hearing held by the Appeal Division?
3. What is the standard of proof applicable in respect to this case?
4. Did the Appeal Division ignore relevant evidence and take into consideration
irrelevant evidence?
1 - Onus of proof
[6] The applicant argues that once a sponsor makes a prima facie case that he is married his spouse thereby becomes a prima facie member of the Family Class and the onus of disproving the bona fides of the marriage then rests with the respondent Minister. I must disagree with this submission. Subsection 8(1) of the Immigration Act makes it very clear, the burden of proving that a new person has a right to come into Canada or that his admission would not be contrary to the Act or to the regulations rests on that person. It is therefore my view that the burden of proving that the wife's admission into Canada would not have been contrary to the Immigration Act and its Regulations rests upon the applicant and his wife.
2 - Trial de novo
[7] The applicant argues that the Appeal Division erred by accepting the visa officer's findings as fact and thereby failed to afford the applicant a de novo hearing. The Appeal Division at page 2 of its reasons wrote:
The panel heard extensive sworn testimony at the appeal hearing from the appellant and, by teleconference, the appellant prior to which Counsel had filed extensive documentary evidence entered as Exhibit "A-1" in support of the appeal. As this is a de novo hearing in the broadest sense, in keeping with the principle held in the decision in Kahlon, the Board may and has considered additional evidence, both oral and documentary, as well as that which was before the Second Secretary in arriving at a decision.
[8] In Rattan v. Canada (Minister of Employment and Immigration) (1994), 73 F.T.R. 195, at
page 199. Madame Justice Reed discussed "the Appeal Division's role as one not to determine whether the immigration officer's decision was correctly taken, but to determine if the sponsoree is in fact a member of the class of persons excluded by s.4(3) of the Regulations." The learned Judge went on to cite Chief Justice Thurlow in Mohammed v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 90 (C.A.), and stated that:
...the sponsor's evidence, and the immigration officer's decision must be reviewed in coming to the decision. If the sponsor can satisfy the panel that the immigration officer's conclusions were incorrect, an appeal is allowed.
[9] A review of the record of decision of the Appeal Division shows that not only was the visa officer's decision considered but the applicant's new evidence was also considered by the panel. It is my view that there is no factual foundation to support the applicant's contention. I therefore find that a de novo hearing as contemplated by law was appropriately held by the Appeal Division.
3 - Standard of proof
[10] The applicant argues the Appeal Division erred by applying the wrong standard of proof, claiming that the standard of proof should be higher than that of "balance of probabilities" since alleging that the marriage is not bona fides is tantamount to an allegation of fraud in civil cases. I cannot agree. The jurisprudence has established that in immigration matters the onus that must be met is on the ordinary standard of proof in civil cases, the balance of probabilities, as per Mr. Justice Linden in Ahani v. M.C.I. (2000), 7 Imm. L.R. (3d) 1. My collegue, Mr. Justice Pinard in Davykenko v. Canada (Minister of Employment and Immigration), [2001] F.C.J. NO.470, p.1, at paragraph 2, observed that the correct standard of proof when dealing with subsection 4(3) of the Immigration Regulations, was that of the preponderance of evidence. The issue for determination is not whether the applicant or his spouse committed a fraud but rather whether their marriage was bona fides. It is for the applicant to satisfy the visa officer and the Appeal Division that his marriage was genuine on a balance of probabilities.
4 - Consideration of evidence by the Appeal Division
[11] Mr. Justice Strayer in the Horbas decision, [1985] 2 F.C. 359, at page 365, set out the test to be applied in dealing with subsection 4(3) cases under the Immigration Regulations. He stated that the test is a double test: that is, the spouse is disqualified under subsection 4(3) only if, first the marriage is entered into primarily for the purpose of gaining admission to Canada and second, the marriage is entered into not with the intention of residing permanently with the other spouse. The applicant argues that the Appeal Division misapplied this test as it looked at the applicant's intention and not to the wife's intention. At page 6 of its reasons the Appeal Division stated, "In reaching my decision I also rely on the decisions in Bisla and Heera. In Heera the decision held that the Appeal Division must look at the sponsored applicant's intentions, not the applicant's beliefs or intentions." The record does show that the Appeal Division did consider the applicant's evidence and did draw from it a negative inference as to the applicant's credibility. The record also shows that this negative inference was considered by the Appeal Division in determining whether the sponsored spouse had the intention of residing permanently with the applicant. It is proper for the Appeal Division to make and consider reasonable inferences drawn from a number of aspects of the evidence in considering the sponsored applicant's intentions including the applicant's evidence. As pointed out by Madame Justice Reed in Rattan, supra, at page 199:
One does not have to find a specific statement by the relevant spouse that there is no intention to reside permanently with the sponsoring spouse. Indeed, one would hardly expect to find such a statement. Inferences will usually be made in these cases from a number of aspects of the evidence.
It is my view the Appeal Division did consider the sponsored wife's intention of residing permanently with her spouse and properly applied the test in Horbas.
[12] The applicant further argues that the Appeal Division placed too much emphasis on his relationship with Adrianna Tisko, his ex-girlfriend, and made and relied on an erroneous finding of fact that he was and is living together with her. The evidence does not appear to support this contention by the applicant. In its reasons the Appeal Division found that the applicant and Adrianna Tisko, "...lived under the same roof but not with each other. The Appellant shares the basement apartment with a male friend. Adrianna lives in a rented room elsewhere in the same home." A review of the decision as a whole, I am of the opinion, that this is but one aspect the panel considered in assessing all the evidence. It is clear that the panel focused on the fact that he had a sexual relationship with her for a lengthy period leading up to the time he left to marry his wife in Vietnam. This relationship is not disputed by the applicant. In my view, it was appropriate for the visa officer to consider this element, particularly since the applicant claims that he did not break up with his ex-girlfriend until after he married his wife in Vietnam. I find the inferences drawn from these facts to be reasonably open to the visa officer and the Appeal Division.
[13] The applicant further argues that it was patently unreasonable for the Appeal Division to draw a negative credibility inference on the fact that the applicant was unable to answer which authority issued to him his "Freedom to Marry Certificate". The applicant felt such a trivial detail forgotten three years later did not warrant such an inference. I disagree. The applicant failed to explain how he could have obtained this required document between May 1, 1997 when he proposed to his wife, and May 13, 1997, the day he registered the marriage. I accept the respondent's submission that unless he went to Vietnam with the intention of marrying, which is not the applicant's evidence, he would surely have remembered how he obtained such a certificate in such short order. I find the inference drawn by the Appeal Division to be reasonable.
[14] The Appeal Division expressed the view that new evidence of communications between the applicant and his wife between 1997 and 1999 was not helpful in addressing the negative inference drawn by the visa officer. It was only after receiving the letter refusing her application for permanent residence dated March 12, 1999, that the applicant submitted further evidence of phone calls and letters. Page 2 of the letter of March 12, 1999, from the Second Secretary, Visa Section, stated:
In addition, you have never received any telephone calls from him nor do you ever telephone your sponsor. You do not know nor have you ever known your sponsor's telephone number. When asked how you stay in contact with your sponsor, you explained that you would hear about your sponsor from his family members who are still residing in Vietnam.
The new evidence before the Appeal Division contradicts the evidence originally given before the visa officer, and this contradiction is not explained. I am of the view that the Appeal Division reasonably concluded that this additional evidence serves to create a veneer of genuineness to the relationship.
Standard of review
[15] In Khangura v. Canada ( Minister of Citizenship and Immigration) (2000), 191 F.T.R. 311, p. 315 at paragraph 21, my colleague Mr. Justice O'Keefe in dismissing an application for judicial review of a decision of the Appeal Division stated:
"The appropriate standard of review of the Appeal Division's decision is one of correctness when it is dealing with a question of law and the standard of review when dealing with questions of mixed law fact and law is reasonableness simpliciter. Findings of fact made by the Appeal Division should not be overturned unless they are clearly wrong."
[16] In Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875, Mr. Justice Abbott of the Supreme Court of Canada stated that a high degree of judicial deference should be afforded the Appeal Division. At page 877 of his reasons, he stated:
In my opinion however, such an appeal can succeed only if it be shown that the Board (a) failed to exercise the discretion given under s. 15.in accordance with well established legal principles. As to those principles, Lord Macmillan speaking for the Judicial Committee said in D. R. Fraser and Co. Ltd. v. Minister of National Revenue, at p. 36:
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. (Footnotes omitted)
[17] I will therefore adopt the standard of review articulated in Boulis, supra, in the present case. When the above standard is applied to the present case, I can find no basis to interfere with the decision in issue. In reviewing the Appeal Division's decision as a whole, I am of the opinion that the panel based its decision on a number of inconsistencies in the evidence that allowed it to reasonably draw the inferences that it did draw on credibility. Further, I find that it was reasonably open to the Appeal Division to conclude, based on the evidence, that the Applicant entered into the marriage primarily for the purpose of gaining the admission to Canada as a member of the family class and not with the intention of residing permanently with the appellant.
[18] For the above reasons this application for judicial review will be dismissed.
[19] The applicant proposes the following question for certification which I paraphrase as: Once a prima facie case of a marriage is established does the burden of proof shift to the Minister to show that the marriage is not genuine? Section 8 of the Immigration Act is clear, the onus rests on a person seeking to come into Canada. I am of the view that the answer to the applicant's proposed question is found in the wording of section 8 of the Immigration Act. Therefore I will not be certifying a question of general importance.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is dismissed.
"Edmond P. Blanchard"
Judge