Date: 20040809
Docket: IMM-5872-03
Citation: 2004 FC 1090
OTTAWA, ONTARIO, THIS 9TH DAY OF AUGUST, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
THI NGOC LAN DANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Thi Ngoc Lan Dang, the Applicant and a permanent resident of Canada, has been seeking to sponsor her husband, Mr. Nhu Y. Nguyen, his son and his daughter, residents of Vietnam, to come to Canada..
[2] Mr. Nguyen's application for permanent residence was refused by letter dated August 30, 2000. The visa officer determined that Mr. Nguyen entered into marriage with Ms. Dang primarily for the purposes of gaining admission to Canada as a member of the family class and not with the intention of living permanently with his spouse. He was, therefore, a person described in section 4(3) of the former Immigration Regulations (the _Regulations_) and was inadmissible under section 19(2)(d) of the former Immigration Act (the _Act_).
[3] Ms. Dang appealed this decision to the Immigration and Refugee Board, Immigration Appeal Division (_IAD_). By decision dated June 30, 2003, the appeal was dismissed. The Applicant seeks judicial review of IAD's decision of the IAD.
Issues
[4] Although the Applicant initially raised the issue of whether the IAD failed to apply correctly the legal test in Horbas v. Canada (Minister of Employment and Immigration) (1985), 22 D.L.R. (4th) 600 (F.C.T.D.), in that it failed to assess whether Mr. Nguyen had any intention of residing permanently with the Applicant, this argument was not pursued in oral submissions. The Applicant conceded that, in this case, the determinative factor was the intention of Mr. Nguyen in entering into marriage with the Applicant. Accordingly, the remaining issues for determination are as follows:
1. Did the IAD fail to provide the Applicant with a de novo hearing by requiring the Applicant to disprove the findings of the visa officer?
2. Did the IAD ignore relevant evidence, misconstrue the evidence before it or make patently unreasonable findings?
Visa Officer's Decision
[5] Mr. Nguyen's application for permanent residence was refused by letter dated August 30, 2000. At his interview, which was attended by his daughter, the visa officer confronted Mr. Nguyen with an envelope that he submitted. This envelope was addressed to Mr. Nguyen's ex-wife from her father, Mr. Nyen Tong. The sending address matched the address of the Applicant in Toronto. It appeared, therefore, that Mr. Tong was living with the Applicant. When confronted, Mr. Nguyen was supposedly unable to offer any explanation for this. The visa officer also noted that Mr. Nguyen's daughter from a former marriage stated that her parents were living together. Although married to the Applicant, Mr. Nguyen appeared to still be living with his ex-wife. Accordingly, the visa officer found that, pursuant to section 4(3) of the Regulations, Mr. Nguyen entered into marriage with the Applicant primarily for the purposes of gaining admission to Canada and not with the intention of living permanently with the Applicant. He was determined to be inadmissible under section 19(2)(d) of the Act.
[6] The Applicant appealed this decision to the IAD.
IAD Decision
[7] The hearing occurred over the course of three days. The IAD heard from five witnesses: the Applicant, Mr. Nguyen, Mr. Tong, the Applicant's daughter and Mr. Nguyen's daughter. Testimony from the landlord of the Applicant and Mr. Tong was provided in an affidavit although the witness was not presented in person. Written submissions were received as well as substantial documentary evidence. Included in this evidence was a statutory declaration of the visa officer attesting to his Computer Assisted Immigration Processing System (CAIPS) entries and his interview notes which were, in effect, the decision under appeal to the IAD.
[8] Further, the IAD had before it another envelope dated May 1999 that was from the Applicant and addressed to Mr. Nguyen at his ex-wife's home. The Applicant and Mr. Nguyen testified that he briefly used his ex-wife's address to receive letters from the Applicant. The children would pick them up and deliver them to Mr. Nguyen at his sister's home. Mr. Nguyen testified that this arrangement was convenient for him, as he experienced difficulty receiving mail at his own address.
[9] Although the IAD found that the testimony of the five witnesses was largely consistent, it nevertheless had major credibility concerns in respect of all of them. The key issue for the IAD was evidence linking the Applicant and Mr. Nguyen to his ex-wife and ex-wife's father, Mr. Tong. Explanations refuting this evidence were found not to be credible. This led the IAD to find that it could not reliably conclude that Mr. Nguyen ceased living with his ex-wife and that they do not have some ongoing relationship. The IAD was also unable to accept that the Applicant coincidentally lives with Mr. Tong. Having found that the marriage is not bona fide and that Mr. Nguyen has no intention of living permanently with the Applicant, the IAD dismissed the appeal for lack of jurisdiction.
Analysis
Issue #1: Was the hearing conducted as a de novo hearing?
[10] The Applicant submits that a section 70 appeal is a hearing de novo in the broadest sense (Kahlon v. M.E.I. (1989), 7 Imm. L.R. (2d) 91 (F.C.A.) and that the hearing before the IAD was not conducted as a de novo hearing because the IAD accepted the veracity of information recorded in the visa officer's notes.
[11] In my view, the IAD's decision to accept the veracity of evidence properly before it does not indicate that a de novo hearing was not granted. The reasons of the IAD demonstrate that great consideration was given to the testimony of the witnesses at the hearing. There is no reviewable error.
Issue #2: Did the IAD ignore relevant evidence, misconstrue the evidence before it or make patently unreasonable findings?
[12] In assessing the bona fides of a marriage for purposes of section 4(3) of the Act, the IAD is required to make findings of fact. Ultimately, the Applicant and her husband bear the onus of proving their case (Canada (Solicitor General) v. Bisla (1994), 88 F.T.R. 312 at paras. 10 and 13)). The applicable standard of review for these determinations is patent unreasonableness (Grewal v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1223 (F.C.) (QL) at paras. 5, 9, and 10). Accordingly, I can only overturn the decision of the IAD if it was patently unreasonable, in the sense that it was entirely unsupported by the evidence.
[13] It is clear from the reasons of the IAD that it did not believe the key elements of the story presented to it by the witnesses. The Applicant submits a long list of alleged errors. Many of them are no more than a different view as to the weight to be given to certain evidence. Others are not material to the decision. The list of alleged errors is as follows:
1. the IAD erroneously found that the Applicant was influenced by Mr. Tong when in fact, she decided to marry Mr. Nguyen prior to moving to Toronto and meeting Mr. Tong;
2. the IAD erroneously held that Mr. Nguyen's children would have to walk 30-40 kilometres and not 3-4 kilometres to fetch their father's mail from their mother's home;
3. Mr. Tong's daughter cannot benefit in any way from an alleged plot to bring her ex-husband to Canada, since, under the Immigration and Refugee Protection Act (the _IRPA_), divorced spouses are not eligible for sponsorship;
4. the IAD erred by not referring to:
< testimony of the Applicant's landlady
< evidence of Mr. Nguyen's ex-wife being in a long-term common law relationship with someone other than Mr. Nguyen.
< the evidence of the Applicant that she was working at two jobs, for long hours each week, to provide a future home for her new husband and children
< the evidence that the Applicant was sending money to her new husband
< the evidence of the daughter attesting to the relationship between the Applicant and Mr. Nguyen
5. the IAD gave excessive weight to the statutory declaration of the visa officer, which was neither trustworthy nor reliable.
[1] In respect of the first two submissions, the Applicant misunderstood the IAD's findings. The IAD did not find that the Applicant was influenced by Mr. Tong to marry Mr. Nguyen. Rather, the IAD implied the very opposite in its reasons; that the Applicant's decision to live with Mr. Tong arose as a consequence of her decision to marry Mr. Nguyen:
In order to find the account of events provided by the appellant and others credible, the panel would need to find that it was a mere coincidence that one month after the appellant and principal applicant met in Vietnam, the appellant moved thousands of miles and ended up in the same apartment as a former relative of the principal applicant [Mr. Nguyen], and not insignificantly, in the panel's opinion, the grandfather of two of the applicants.
[2] Further, the IAD did not make a material error in respect of the distance the children would have to walk to collect their father's mail.
Even if he had some difficulty receiving mail from the appellant at his sister's because students were taking it - and frankly the panel doubts this claim - it simply is not believable to the panel that he would use his ex-wife's house as a place to receive mail from his present wife. He supposedly left this house in 1994 ... The house is over 30 kilometres from where he was living. How is using this address in 1999 either convenient or appropriate?
[3] The IAD referred to the distance of 30 kilometres to describe the distance between Mr. Nguyen and his ex-wife's home. Further, material to the finding that he has an ongoing relationship with his ex-wife was his daughter's testimony before the visa officer that her parents still live together.
[4] The Applicant submits that her husband's ex-wife has nothing to gain if Mr. Nguyen's application for permanent residence is successful. This is not true. Her children will be able to live in Canada with their father, seven aunts and grandfather if he is successful. This is a distinct advantage. Further, adult children can sponsor their parents. Thus, even though, under the new legislative provisions in the IRPA, the former wife cannot be sponsored, motivation to maintain the appearance of a marriage and to pursue an appeal to the IAD still existed.
[5] The Applicant submits that her landlady corroborated her account of events. She further submits that her landlady is impartial and the IAD's failure to consider this testimony in its decision amounts to a reviewable error. In the Applicant's affidavit sworn for this hearing, she deposed that her landlady _attended on two days of hearing but could not be called because of the amount of time taken on half-day hearings. She had no stake in the outcome and was not cross-examined as to the possibility of any scheme._ A review of the affidavit of the landlady indicates that it attests to character but does not have direct bearing on the issues raised by this case; that is, the relationship among the Applicant, her husband, her husband's ex-wife and her husband's ex-father-in-law. Further, the impartiality of this alleged witness is not clear. This is because at paragraph 13 of her affidavit, the Applicant described her landlady as a friend. Nothing material was added by the testimony of the landlady and the IAD did not err in failing to refer to it.
[6] Finally, in respect of the allegation that the IAD ignored evidence of Mr. Nguyen's ex-wife being in another relationship, I disagree that this evidence was ignored. This evidence was mentioned by the IAD in its decision. It was not given much weight. This is understandable. Mr. Nguyen's ex-wife's relationship with another man was apparently tumultuous, given that he allegedly assaulted her daughter. Further, the existence of this relationship does not logically preclude the existence of an ongoing relationship between Mr. Nguyen and his ex-wife. This finding was reasonably open to the IAD on the facts before it. The evidence before the IAD included an envelope addressed to Mr. Nguyen at his ex-wife's address, and his own daughter's testimony before the visa officer that her parents live together.
[7] At the hearing, the evidence of all the witnesses who testified was consistent.
Ultimately, the IAD found the original utterances of Mr. Nguyen's daughter before the visa officer to be more truthful than her testimony at the IAD hearing. Though it acknowledged in its decision the consistency of the testimony it heard, the IAD nevertheless found that this consistency did not overcome its credibility concerns. Failure to specifically refer to the testimony of Mr. Nguyen's daughter is not, therefore, a material defect in the IAD's decision. The IAD essentially concluded that none of the testimony it heard allayed its concerns about the bona fides of the Applicant's marriage to Mr. Nguyen.
[8] The Applicant also asserts that the evidence that she was working at two different jobs to provide a future home for her husband and new family was compelling evidence of a bona fide marriage. In her submission, the IAD erred in not referring to this evidence. While it might have been preferable for the IAD to refer to this evidence, I am not persuaded that its failure to do so is a material error. There are many reasons why the Applicant might have been working so diligently.
[9] Finally, I come to the visa officer's CAIPS notes and hand-written notes from the interview with Mr. Nguyen. The Applicant, in great detail, attempted to discredit the information gathered by the visa officer and the conclusions that he drew. There is no question that the IAD placed significant weight on the visa officer's declaration. However, even if I assume that there were some errors in that decision, there can be no debate that this information was provided by a disinterested third party, unlike the testimony of all the witnesses at the appeal before the IAD. It was logical and reasonable for the IAD to place more weight on some aspects of this information than on the evidence of the Applicant's witnesses at the appeal hearing.
[10] I agree that the visa officer may have been mistaken about the timing of some of the letters between the Applicant and Mr. Nguyen and about the letter from the brother. I further agree that the IAD appears to have accepted this evidence as true in spite of contradictory evidence presented at the appeal hearing. However, in my view, neither of these alleged errors goes to the heart of the IAD's reasons for rejecting the Applicant's claim. As is clear from the decision, the concern to the IAD was the address to which the Applicant sent her letters to Mr. Nguyen, not the dates on which she sent them.
[11] In conclusion, I am satisfied that the decision of the IAD was not patently unreasonable; there was sufficient evidence properly before the IAD to support its conclusion. The application will be dismissed.
[12] Neither party requested that I certify a question. None will be certified.
ORDER
THIS COURT ORDERS THAT:
1. The application is dismissed; and,
2. No question of general importance is certified.
_Judith A. Snider_
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5872-03
STYLE OF CAUSE: THI NGOC LAN DANG v. THE M.C. & I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 28, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Snider
APPEARANCES:
Mr. Cecil L. Rotenberg FOR APPLICANT
Ms. A. Leena Jaakkimainen FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Cecil L. Rotenberg FOR APPLICANT
Barristers & Solicitors
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada