Date: 20050607
Docket: IMM-5353-04
Citation: 2005 FC 816
Toronto, Ontario, June 7th, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
TRANG BUI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Trang Bui is a citizen of Vietnam and Norway. He came to Canada on a visitor's visa in September 2001. He overstayed his visa and his application to renew it, seven months late, was refused. He married Kham Luanglath, a Canadian citizen of Vietnamese birth, on January 31, 2002 in Toronto and applied under the former Immigration Act for an exemption from the landing requirements as a sponsored spouse on June 4, 2002.
[2] On that application, completed with the assistance of an immigration consultant, Mr. Bui indicated that he met his wife, Ms. Kham Luanglath, at a park in Oslo when she travelled to Europe and spent four days in Norway in June 2000. They then stayed in touch frequently by phone until he came to visit in September 2001. After a week together in Montreal, they decided to get married. Mr. Bui stated that he had been employed in construction in Norway and hoped to gain employment in the same field in Canada.
[3] With the coming into force of the Immigration and Refugee Protection Act, Mr. Bui's application was converted into a humanitarian and compassionate ("H & C") application. In November 2003, the respondent sent Mr. Bui a request for additional information. He completed and submitted a new application in December 2003. In the covering letter, his recently retained legal counsel noted that the employment history described in the prior application was false. Mr. Bui had in fact been unemployed and on social assistance for the eight years prior to his arrival in Canada, as a result of stress from the breakup of a prior marriage. No other corrections to the previously submitted information were offered.
[4] According to Mr. Bui's affidavit filed in these proceedings, the story of how he first met his wife was also contrived. He now says that he met her only after arriving in Canada in the fall of 2001.
[5] On April 21, 2004, Mr. Bui's H & C application was refused because the reviewing Immigration officer was, first, not satisfied that the marriage was a genuine one. She noted that Ms. Luanglath may not have been free to marry as she was already married, according to her landing document and other documents, to a Mr. Tadam Luanglath.
[6] The officer was also not satisfied that Mr. Bui was established in Canada. He is unemployed and has not worked in Canada or done any kind of training or academic upgrading. He had only been in Canada for a short time. Consequently, the officer did not find sufficient H & C grounds to warrant processing Mr. Bui's application from within Canada.
ISSUES
[7] 1. Did the officer breach the principles of procedural fairness by making the determination on the basis of credibility without conducting an interview?
2. Did the officer err in ignoring evidence or misconstruing the evidence?
ARGUMENT & ANALYSIS
1. Procedural fairness
[8] Mr. Bui submits that his rights to procedural fairness were violated because he was not granted an oral interview. The officer did not believe that his marriage was genuine, an inference based on a misapprehension of the evidence. An oral interview should have been convened to allow the officer to assess Mr. Bui's credibility. The more important the decision is to the lives of those affected, the more stringent the procedural protections must be: Singh v. Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
[9] The respondent argues that there is no right to an oral interview to respond to concerns about the bona fides of a marriage: Baker, supra; Owusu v. Canada (Minister of Citizenship and Immigration), [2004] 2 F.C.R. 635; Kim v. Canada (Minister of Citizenship and Immigration),2002 FCT 40 at para. 22. The question in this case was whether the applicant had satisfied the officer that his marriage was bona fide and he failed to do so: Aigbirior v. Canada (Minister of Citizenship and Immigration) 2002 F.C.J. No. 1134 (T.D.).
[10] In Baker, supra., the Supreme Court of Canada observed at paragraph 34 that immigration officer decisions are "very different from judicial decisions". The Court recognized that the statute provides for flexibility on practice and procedure. An oral hearing is not always necessary to ensure a fair hearing. The applicant must have a meaningful opportunity to present the various types of evidence relevant to his or her case and have it fully and fairly considered. What is required is meaningful participation in the decision making process.
[11] The standard of unusual, undeserved and disproportionate hardship for the grant of an exemption from the requirement to apply for a visa from outside of Canada is a high threshold: Lee v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 139; Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 206 (F.C.T.D.).
[12] The applicant bears the onus of satisfying the decision-maker and may present whatever facts he believes are relevant. An oblique, cursory or obscure submission does not impose an obligation on the officer to inquire further: Owusu,supra at para. 9.
[13] I am satisfied that there was no breach of procedural fairness in this case. Mr. Bui was given sufficient opportunities to present evidence relevant to his application and what he submitted was fully and fairly considered. That he received poor advice from the paralegal he first consulted is unfortunate, but he chose that counsel. It is not sufficient to say now that he did not know what was being filed over his signature: Cove v. Canada (Minister of Citizenship and Immigration) 2001 FCT 266. It was his responsibility to ensure that the information was accurate. The officer cannot be faulted for not convening an interview to determine what was false and what was accurate in his written submissions.
2. Ignoring or misconstruing evidence
[14] Mr. Bui submits that the officer ignored evidence that supported the bona fides of his marriage to Ms. Luanglath. This included proof that the marriage had been successfully registered in Ontario and a residential lease in both of their names indicating cohabitation. Mr. Bui submitted a document from the headman of Ms. Luanglath's village in Laos, where she had lived for many years, indicating that his wife and Mr. Luanglath had never been married.
[15] The respondent submits that the standard of review for a H & C officer's decision is reasonableness: Mayburov v. Canada (Minister of Citizenship and Immigration (T.D.). The officer properly considered the information before her and came to a conclusion that was reasonably open to her. The court should not re-weigh the evidence: Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358; Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3; Agot v. Canada (Minister of Citizenship and Immigration) (2003), 232 F.T.R. 101 at para. 8.
[16] In my view, the conclusion the officer came to was reasonably open to her on the evidence presented. There was Ms. Luanglath's record of landing in 1985 that clearly indicated that she was married at the time. There were also the birth certificates of her children indicating at least that the man listed as her husband on her landing documents was the father of her children. There was no record of a divorce having taken place in Canada. At best, the document from the village headman merely certifies Ms. Luanglath's own statement that she was never previously married. It is not independent evidence of that fact.
[17] The officer, therefore, had valid reasons to doubt the validity of the marriage. In any event, marriage to a Canadian citizen will not in every case be sufficient grounds to grant H & C relief. The application was based on the couple's relationship and the hardship a separation would cause them if Mr. Bui was required to make his application from Norway. It is questionable whether the application would have succeeded even if the marriage had been accepted as valid.
[18] I see no reason to interfere with the officer's decision and accordingly, this application will be dismissed.
[19] The applicant has proposed that I certify as a question of general importance: whether the duty of fairness requires an oral interview when credibility is at issue. It is settled law in my view, that an interview is not always required to meet the standard of procedural fairness by an H & C officer: Baker, supra. There are decisions of this court that have held that an oral hearing is necessary where credibility is an essential issue to the case: Kaberuka v. Canada (Minister of Employment and Immigration), [1995] 3 F.C. 252 (T.D), and Tehrankari v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1420, (T.D). I am not satisfied that this question would be determinative of the outcome in this case.
ORDER
THIS COURT ORDERS that the application is dismissed. No question is certified.
"Richard G. Mosley"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5353-04
STYLE OF CAUSE: TRANG BUI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: JUNE 6, 2005
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: MOSLEY J.
DATED: JUNE 7, 2005
APPEARANCES BY:
Ronald Poulton FOR THE APPLICANT
Kareena Wilding FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mamann & Associates
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
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