Vong v. Canada (Minister of Citizenship and Immigration), 2004 FC 1317

                                                                                                                                   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