Date: 20030903
Docket: IMM-3697-02
Citation: 2003 FC 1020
Ottawa, Ontario, this 3rd day of September, 2003
Present: The Honourable Mr. Justice James Russell
BETWEEN:
NONG SAT MUI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of Mr. R. Neron of the Appeal Division of the Immigration and Refugee Board (the "Board"), dated July 24, 2002 (the "Decision") wherein the Board dismissed the Applicant's appeal for lack of jurisdiction because, at the time of marriage, Zhen Qi Guo ("the Husband") did not intend to reside permanently with Nong Sat Mui (the "Applicant") and the Husband entered into the marriage primarily for the purpose of gaining admission to Canada to join his family. The Applicant requests an order quashing the Decision of the Board to dismiss the appeal and an order remitting the matter back for redetermination by a differently constituted panel.
BACKGROUND
[2] The Applicant is 33 years of age and is a Canadian citizen who was born in Vietnam. The Husband is 45 years of age and lives in Hong Kong. The Applicant and her Husband purport to have met through their mothers, who are friends, in May 1999. Both the Applicant and her Husband speak Cantonese, and that is how they communicate with each other.
[3] According to the Applicant, she and her Husband were in contact with each other starting in June of 1999. In April, 2000, the Applicant went to China to visit her future husband, who lived there at the time. Prior to leaving for China, the Applicant obtained a certificate of non-impediment, which indicated that she was single and free to marry. The Husband made a marriage proposal to the Applicant on April 10, 2000. She accepted and they were married the following day. Only a few people attended the wedding and no family members of the Applicant were present. The Applicant testified that her parents, relatives, and friends were in Canada and she intended to have an additional celebration when her Husband came to Canada.
[4] The Applicant applied to sponsor her Husband in May, 2000 and returned to China on March 23, 2002 to visit him. The Applicant testified that, during this visit, she lived with her Husband, helped him with his business, and engaged in pleasureful activities. The Applicant testified that she and her Husband have talked a lot about their future plans. They plan to save up money, start a business and have children. The Applicant feels that the length of separation has been a very difficult experience.
[5] The Applicant provided telephone bills, letters, postcards and photos in support of her sponsorship application before a visa officer (the "Visa Officer"). The Visa Officer refused the Applicant's sponsorship application. The Visa Officer concluded that the Husband married the Applicant for the primary reason of gaining admission to Canada and that he did not have the intention of residing permanently with the Applicant.
[6] The Applicant appealed the decision of the Visa Officer to the Board.
VISA OFFICER'S DECISION
[7] The Visa Officer asked the Husband about his family in Canada. He explained that his parents, one younger brother, and a younger sister were in Canada. Under questioning, he also explained that his brother-in-law sponsored his sister to come to Canada in 1992. She was the first member of his family to come to Canada. The Visa Officer asked the Husband whether his brother-in-law and sister were still together. The Husband replied that they were.
[8] The Husband explained to the Visa Officer that he and the Applicant married shortly after they saw each other during his wife's visit to China because they had known each other for a certain period of time and, through talking to each other, they had found they were compatible. The Husband found the Applicant to be a very agreeable person and his ideal of a wife. He described the Applicant as a very pleasant person, easy to get along with and very willing to help people, a very loving and kind person, very much a traditional Chinese woman, a good wife at home and a respectable lady when dealing with outside people.
[9] The Applicant testified that, at the beginning of their relationship, she and her Husband did not keep records of their phone conversations because they used phone cards, which they did not keep. They were not aware of the need to keep records of their conversations as evidence at that time, particularly since they then considered each other as friends and had not formed an intention to pursue a marital relationship. The Applicant started keeping records of her phone conversations later in the relationship, after they got married and upon the advice of a friend, so that she could provide documentary support for the sponsorship application.
[10] The Applicant indicated that she limited her written communication with her Husband because of her relatively weak reading and writing skills in Cantonese. The Applicant's sister-in-law had to help translate letters for her, and both the Applicant and her Husband indicated that having a third party involved detracted from the intimate nature of the process. As a result, most of their communication, both before and after marriage, occurred by telephone.
[11] The Visa Officer asked the Husband whether he had ever tried to immigrate to Canada before. He replied that he had applied to come in as a visitor but not as an immigrant. His brother needed a chef, and he had work experience as a chef. The Husband did not know what happened with that application because there was no follow up.
[12] The Visa Officer told the Husband that there was an allegation that he paid $30,000 to marry the Applicant. The Husband responded that this was ridiculous and disclosed that he used to have a relationship with another woman, prior to meeting his wife, and that she fabricated stories to make his life more difficult. The Visa Officer noted that he took into account the contents of a poison pen letter sent by the former girlfriend of the Husband, but gave the letter limited weight.
[13] The Visa Officer refused the application.
DECISION UNDER REVIEW
[14] The Board indicated that it considered all the evidence adduced at the hearing and found that the Husband did marry the Applicant primarily for the purpose of gaining admission to Canada as a member of the family class, and did not have the intention of residing permanently with his sponsor in Canada. The Board concluded, pursuant to s. 4(3) of the former Immigration Regulations, that the Husband was excluded as a member of the family class and it dismissed the appeal for lack of jurisdiction.
[15] The Board came to this conclusion by finding that the unexplained haste to marry, the discrepancies between the Applicant's interview with the Visa Office and the Applicant's testimony, and the lack of sufficient supportive evidence of on-going communications prior to the marriage indicated that the relationship was not genuine and was entered into by the Husband for immigration purposes and not with the intention of residing permanently with the Applicant. The Board noted that the contents of the poison-pen letter from the ex-girlfriend of the Husband did not influence the Decision. The Board did not find the Applicant and her Husband to be credible witnesses and, instead, found their testimony self-serving and contrived. The Board found some key discrepancies that the Board felt went to the essence of their marriage, such as when the Applicant and her Husband met and when they decided to get married. The Board also noted that the Applicant did not call her mother or her mother-in-law as witnesses at the appeal hearing. Instead, the Applicant and her Husband testified. The Board found that the Applicant's testimony and the documentary evidence were not sufficient to arrive at a decision favourable to the Applicant.
[16] The Board found the fact that the Applicant obtained a certificate of non-impediment in Canada prior to visiting China in April 2000 contradicted the Applicant's contention that she was not planning to marry when she visited on that occasion. Additionally, the Board did not find it credible that the Husband only proposed to the Applicant one day before the marriage. The Board found that the marriage was entered into for immigration purposes and because the Husband's family living in Canada had a compelling interest in having him immigrate to Canada.
PERTINENT LEGISLATION
[17] The pertinent legislation for the refusal of the Husband from admission into Canada as a member of the family class is subsection 4(3) of the Immigration Regulations, SOR/78-172:
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.
Bad faith
4. For the purposes of these Regulations, no foreign national shall be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine or was entered into primarily for the purpose of acquiring any status or privilege under the Act.
The relevant provisions of the Immigration Act, R.S.C. 1985, c. I-2 are subsections 9(1) and 114(2), which read as follows:
| 9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.
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9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée.
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| 114. (2) The Governor in Council may, by regulation, authorize the Minister to exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Minister is satisfied that the person should be exempted from that regulation or that the person's admission should be facilitated owing to the existence of compassionate or humanitarian considerations. |
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114. (2) Le gouverneur en conseil peut, par règlement, autoriser le ministre à accorder, pour des raisons d'ordre humanitaire, une dispense d'application d'un règlement pris aux termes du paragraphe (1) ou à faciliter l'admission de toute autre manière.
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ISSUES
[18] The Applicant states that the issues are as follows:
Did the Board err in law in misinterpreting and ignoring the evidence before it and drawing conclusions based on no evidence?
and
Did the Board err in law in breaching the principles of fairness because it displayed a closed mind that prejudiced the case?
ARGUMENTS
Applicant
[19] The Applicant claims that the Board based its conclusions on mere speculation and conjecture. The Board made wrong findings of fact, ignored the evidence before it and did not provide any valid reasons in clear terms for the refusal of the Applicant's appeal.
[20] The Applicant notes that the Board said the Applicant and her Husband were not credible witnesses. It concluded that their testimony was self-serving and contrived. The Board also noted that there were some key discrepancies that "went to the essence of this marriage relationship as it has been described by the (Applicant), such as when they met and when they decided to get married." The Applicant contends that the Board did not provide any reasons for its conclusion that the Applicant's and her Husband's testimony was self-serving and contrived. Without any analysis and reasons for such a conclusion, the Applicant feels that the negative finding of credibility cannot stand.
[21] The Applicant notes that there were no discrepancies between her testimony and that of her Husband.
[22] The Applicant argues that the Board completely ignored the Applicant's and her Husband's explanations which addressed the concerns of the Visa Officer with regard to the issues of their alleged different backgrounds and linguistic profiles, no proof of contact before March 2000, and lack of credible explanation for a quick marriage after meeting face to face.
Respondent
[23] The Respondent submits that the Applicant has failed to establish that the Board's negative credibility finding was unreasonable. The Respondent argues that the Board did consider the Husband's and Applicant's explanations regarding their marriage intentions and the evidence of money transfers.
[24] The Respondent contends that the Applicant is merely arguing that certain evidence should have been given greater weight. The Respondent submits that questions of credibility and weight of evidence are within the jurisdiction of a panel as the trier of fact. The Respondent cites Thurlow C.J. in Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346 (QL) (F.C.A.):
In our opinion the points argued by counsel for the applicant raise only questions of credibility and of the weight of evidence and afford no legal basis upon which this Court could properly interfere with the decision of the Immigration Appeal Board.
[25] Finally, the Respondent argues that the Board tested the credibility of the Applicant and her Husband at many points during the hearing. There is evidence that, contrary to the Applicant's assertion, the Board did not approach her appeal with a biased mind.
ANALYSIS
Did the Board err in law in misinterpreting and ignoring the evidence before it and drawing conclusions based on no evidence?
[26] In the context of sponsorship appeals, in Bali v. Canada (Minister of Employment and Immigration) (1987), 3 Imm. L.R. (2d) 135 (I.A.B.) at 141, the Appeal Division of the Immigration and Refugee Board has recognised that a conclusion on intent to reside permanently must be based on fact and not on inference.:
... It cannot be said in all cases , just because a sponsoree married a sponsor primarily to gain admission to Canada, he does not intend to reside with his sponsor. Because of this, it is imperative that a finding that a sponsoree does not intend to reside permanently with the sponsor be based on fact and not on inference, as appears to have been done in this case.
[27] In addition, the Board was obliged to provide specific reasons for rejecting evidence submitted by the Applicant. Heneghan J. applied the decision of the Federal Court of Appeal in Hilo v. Canada (Minister of Employment and Immigration) (1992), 15 Imm. L.R. (2d) 199 in finding that the board in Badurdeen v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 504 (QL) (T.D.) failed to adequately analyse the evidence submitted by the applicant in that case:
5. The Board made a sweeping statement about the Applicant's credibility when it said the following:
To lie about experience and to fabricate abuse at the hands of the Sri Lankan authorities, cause the panel to draw a negative inference on the well founded fear of the claimant.
6. In my opinion, the Board here failed to adequately analyse the evidence submitted by the Applicant. It did not provide reasons for its rejection of his evidence. It did not meet the standard described by the Federal Court of Appeal in Hilo v. Canada (Minister of Employment and Immigration) (1992), 15 Imm. L.R. (2d) 199 (F.C.A.) at paragraph 6 as follows:
...In my view, the board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. The board's credibility assessment, quoted supra, is defective because it is couched in vague and general terms. The board concluded that the appellant's evidence lacked detail and was sometimes inconsistent. Surely particulars of the lack of detail and of the inconsistencies should have been provided. Likewise particulars of his inability to answer questions should have been made available.
[28] Evidence which is credible and trustworthy cannot be ignored. While it is not necessary to note every piece of evidence in reaching a decision, there cannot be selective reliance on evidence presented to the detriment of the person concerned, nor can relevant material be ignored. Rothstein J. in Rosales v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1454 (QL) (T.D.) found that the panel in that case ignored very significant portions of evidence:
7. ... Here, the panel justified its rejection of the applicant's assertion that political dissent was not tolerated in Guatemala by a selective and minimal reference to the documentary evidence. From what was pointed out to me, the evidence is overwhelmingly to the contrary. The question of whether a panel accepts or does not accept an applicant's assertions is normally to be left to the panel. But when it arrives at its conclusion by ignoring relevant and apparently overwhelming evidence to the contrary, its decision may not be allowed to stand.
...
12. I must conclude that the reasons the panel rejected the applicant's claim - that he was not a subversive, that political dissent was not punished in Guatemala, that the applicant was not a member of a targeted group and his delay in leaving, ignored very significant portions of the evidence. In this respect, I am of the opinion that the panel erred in law.
[29] Similarly, Nadon J. in Drame v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1232, (QL) (T.D.) found that the immigration officer in that case did not take into account critical information and returned the matter for reconsideration.
[30] The Board in the case at bar assumed that, because the Applicant obtained a certificate of non-impediment to marriage before leaving for China, it was clear that she was planning to marry and that she knew she would marry. The Applicant argues that the Board misinterpreted the evidence and ignored the reasonable explanations provided by both the Applicant and her Husband. An underlying theme raised by the Applicant and her Husband in their testimony before the Board on a number of occasions relates to their age. They indicated an intention to start a family and feel that they are running out of time to do this as they are both getting older. The Applicant asserts that, through phone conversations over time, the Applicant and her Husband found that they liked each other and, after meeting face to face and spending time together, they found that they loved each other.
[31] I find that the evidence of both the Applicant and her Husband was consistent and provided reasonable explanations for all of the concerns the Board raised. The Board completely ignored the evidence before it and did not provide valid reasons in clear terms for its refusal of the Applicant's appeal of the Visa Officer's decision.
[32] The Board states in the Decision that "all of the telephone bills are dated more than one year after the marriage ceremony." The Applicant points out that the Board had access to a whole package of phone bills showing that there were phone calls made from May to December 2000. The Board also disregarded the letters showing evidence of ongoing communication between the Applicant and her Husband because most of them were dated after the Visa Officer denied their original application.
[33] The Board rejected the evidence of money transfers because, according to the Board, "many reasons lead to the exchange of money between people: loans, donations, and payments of debts." The statement appears to be unfounded as there does not appear to have been any evidence before the Board that the Applicant was making some kind of donation or was paying a debt to her husband.
[34] In its reasons the Board stated that the Applicant had stated that her Husband's mother and her mother, who are friends, have played an important part in her marriage, yet they have remained surprisingly silent.
[35] This Court has indicated that conclusions relating to lack of credibility may not be drawn from an absence of evidence. For example, Campbell J. addressed this issue in Mahmud v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 729 (QL) (T.D.):
9. In Maldonado v. Canada (MEI), [1980] 2 F.C. 302, the Federal Court of Appeal held that when an applicant swears to the truth of certain allegations, a presumption is created that those allegations are true unless there is reason to doubt their truthfulness. The Court held that a Board acts arbitrarily in choosing to disbelieve an applicant's testimony where there exists no valid reason to doubt the truthfulness of it. Thus, while it is open to the CRDD as the trier of fact to evaluate the evidence and accord weight, any inconsistencies it finds must be supported by the evidence.
10. In Ahortor v. Canada (MEI) (93-A-237, 14 July 1993), Mr. Justice Teitelbaum held that the CRDD erred in finding an applicant not credible because he was not able to provide documentary evidence corroborating his claims. Thus, while a failure to offer documentation may be a valid finding of fact, it cannot be related to the applicant's credibility, in the absence of evidence to contradict the allegations.
11. In the present case, in effect, the CRDD found the letters submitted by the applicant to be contradictory of the applicant's evidence, not for what they say, but for what they do not say. To follow established authority, the letters must be considered for what they do say. On their face they support the applicant's evidence, and do not provide evidence contradicting that evidence.
[36] The Board in the case at bar used an absence of evidence to make material findings against the Applicant.
[37] As Lutfy J. indicated in Voyvodov v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1417 (QL) (T.D.) a tribunal has to state its reasons for not accepting particular testimony of the applicants in clear and unmistakable terms. The Board did not do so in this case.
[38] The Board also noted in the Decision that the Husband "did not intend to reside permanently with the (Applicant) and that (the Husband) entered into the marriage primarily for the purpose of gaining admission to Canada and to join his family." This logic fails to take into account that the Husband is well-established in China and still has siblings there and the Board declined to address this issue or give any convincing reason to reject the Husband's evidence on his true purpose in marrying the Applicant.
[39] In conclusion, the Board committed reviewable errors in ignoring relevant evidence and drawing inappropriate inferences. These errors are patently unreasonable and reviewable under any applicable standard of review. The Respondent has offered no convincing explanation as to why the Decision should not be returned on these grounds.
Did the Board err in law in breaching the principles of fairness because it displayed a closed mind that prejudiced the case?
[40] The Applicant argues that the Board exhibited bias by precluding the Minister's representative, who was present at the hearing, from participating. The Applicant submits that the panel could not make an adverse finding of credibility after the Applicant and Husband gave consistent evidence without challenging either witness through cross-examination. The Applicant also provides an example of the Board's questioning that allegedly demonstrates bias. After the Husband testified that his brother-in-law sponsored his sister, the Board asked the Husband whether they were still together. The Applicant argues that this reinforces the perception that the Board was exhibiting bias and a closed mind.
[41] The Decision was so flawed in this instance that I can appreciate the Applicant feeling that bias must have been present. However, given my previous conclusion that the matter must be returned for reconsideration it is not necessary to comment further on this additional ground.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The application for judicial review is allowed, the July 24, 2002, decision is set aside and the matter is remitted for redetermination by a differently constituted panel.
2. No question will be certified.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3697-02
STYLE OF CAUSE: NONG SAT MUI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 18, 2003
REASONS FOR ORDER BY: RUSSELL J.
APPEARANCES BY: Ms. Krassina Kostadinov
For the Applicant
Mr. Jeremiah Eastman
For the Respondent
SOLICITORS OF RECORD: Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030903
Docket: IMM-3697-02
BETWEEN:
NONG SAT MUI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER