Date: 20041001
Docket: IMM-7326-03
Citation: 2004 FC 1317
BETWEEN:
Bo VONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board (the "IAD") dated August 25, 2003 in which the IAD dismissed an appeal brought under paragraph 77(3)(a) of the Immigration Act, R.S.C. 1985, c. I-2 because it found that the applicant's spouse had entered into marriage primarily for the purpose of gaining admission into Canada and was consequently an inadmissible member of the family class pursuant to subsection 4(3) of the Immigration Regulations, SOR/78-172 (the "Regulations").
[2] Subsection 4(3) of the Regulations reads as follows:
4. (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.
4. (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.
[3] Where the IAD finds that the individual is contemplated by subsection 4(3) of the Regulations then it does not have jurisdiction to determine whether the officer's decision is justified (Canada (M.C.I.) v. Petrea, [2001] F.C.J. No. 1873 (F.C.T.D.) (QL)). In this case the IAD found that the spouse did indeed fall within the category of inadmissible persons under subsection 4(3) of Regulations and consequently concluded as to its lack of jurisdiction. The IAD based its decision on the fact that there were numerous inconsistencies surrounding three main events in the development of the couple's marital relationship; more specifically, the IAD found that the events surrounding the first meeting between the spouse and the applicant were incoherent; the IAD was also confronted with a number of different versions of the wedding itself and the events following the wedding; finally, the IAD concluded that the applicant had not established, on a balance of probabilities, the existence of continuous communication with his spouse since their wedding.
[4] The applicant's allegations, being allegations with respect to the evaluation of the evidence by the IAD, are allegations of errors of fact. In such circumstances, a standard of patent unreasonableness is to be applied to the review by this Court of the impugned decision (see Qiu v. Canada (M.C.I.), [2003] F.C.J. No. 24 (F.C.T.D.) (QL) and Jessani v. Canada (M.C.I.), [2001] F.C.J. No. 662 (F.C.A.) (QL)). It is also well established that this Court cannot substitute its opinion for that of the IAD with respect to credibility findings unless the applicant can demonstrate that the IAD's decision was based on an erroneous finding of fact that it made in a capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). The Board is a specialized tribunal capable of assessing the plausibility and credibility of a testimony, to the extent that the inferences which it draws from it are not unreasonable (Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)) and its reasons are expressed clearly and comprehensibly (Hilo v. Canada (M.E.I.) (1991), 130 N.R. 236 (F.C.A.)).
[5] Applying all those principles to the case at bar, I am not satisfied, upon reviewing the evidence and hearing counsel for the parties, that the IAD committed any reviewable error and consequently, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
October 1, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7326-03
STYLE OF CAUSE: Bo VONG v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: August 17, 2004
REASONS FOR ORDER BY: PINARD J.
DATED: October 1, 2004
APPEARANCES:
Mr. Joel Waxman FOR THE APPLICANT
Ms. Andrea Shahin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Joel Waxman FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec