Nguyen v. Canada (Minister of Citizenship and Immigration), 2004 FC 709

                                                                                                                                  Date: 20040520

                                                                                                                      Docket: IMM-3863-03

Citation: 2004 FC 709

BETWEEN:

Ngan Van NGUYEN

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 (IAD) of the Immigration and Refugee Board, dated April 8, 2003. The IAD dismissed the applicant's appeal of the decision of the visa officer, dated May 9, 2001, that his fiancée was ineligible to immigrate to Canada under subparagraph 6(1)(d)(i) of the Immigration Regulations, 1978, SOR/78-172 (the Regulations).

[2]         Ngan Van Nguyen (the applicant) is a Canadian citizen who became a widower in 1996, when his first wife and the mother of his three children died. In 2000, he decided to travel to Vietnam to see his family again. While he was visiting the family of one of his friends, during this trip, he met his friend's niece, Thi My Hang Nguyen (the female applicant). The applicant thought it was now time to start all over again. He spent five weeks in Vietnam and during the third week he made a proposal of marriage to the female applicant, in a park. Many people were present at the betrothal on May 22, 2000, including one of the applicant's brothers who had come from Australia as well as his other brothers and his mother residing in Vietnam. The applicant returned to Canada on May 27, 2000, and kept in contact with the female applicant through telephone calls and letters.

[3]         The applicant filed a sponsorship application for the female applicant's landing in Canada. On May 9, 2001, he was notified of the refusal of his application. The visa officer concluded that the female applicant was ineligible to immigrate to Canada because she failed to fulfill the criteria under subparagraph 6(1)(d)(i) of the Regulations. During her interview, the female applicant was unable to satisfy the visa officer that she had not become engaged primarily for the purpose of gaining admission to Canada and that she and the sponsor intended to reside together permanently after being married. The applicant appealed this decision to the IAD.

[4]         In May 2002, between the date of the visa refusal and the date of the hearing at the IAD, the applicant returned to Vietnam and married the female applicant.

[5]         On April 8, 2003, the IAD rejected the applicant's appeal on the sponsorship application for the female applicant's landing. The IAD drew attention to a number of contradictions and inconsistencies between the applicant's statements and the female applicant's statements about the progression of their relationship. Consequently, the IAD did not believe the bona fides of the betrothed and their subsequent marriage.

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[6]         The relevant provision of the Regulations is the following:

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[7]         The applicant has the burden of demonstrating by a preponderance of probabilities that his wife did not become engaged to him primarily for the purpose of gaining admission to Canada without the intention of residing permanently with him (Horbas v. Canada (M.E.I.), [1985] 2 F.C. 359 (T.D.)). It should be noted that an appeal to the IAD is an appeal de novo (see section 69.4 of the Immigration Act, R.S.C. 1985, c. I-2). Thus the IAD decision is centred on the assessment of the facts and the Court, in the context of an application for judicial review of that decision, must display great deference (Lao v. Canada (M.C.I.), [2001] F.C.J. No. 1908 (F.C.T.D.) (QL)); the Court will intervene only where the applicant can demonstrate that the tribunal's decision is patently unreasonable (Tran v. Canada (M.C.I.), [2001] F.C.J. No. 1703 (F.C.T.D.), and Khangura v. Canada (M.C.I.) (2000), 191 F.T.R. 311).

[8]         The applicant submits that the IAD breached the rules of natural justice by adopting the visa officer's decision without considering any new evidence. The applicant notes in particular that the IAD gave no consideration to the fact that the applicant went to Vietnam and married the female applicant in May 2002. A review of the transcript of the hearing reveals, on the contrary, that the IAD did indeed take into account the marriage that occurred after the officer's decision but that it concluded nevertheless that the marriage was not bona fide (see the hearing transcript, at pages 219, 220 and 255 of the Tribunal Record). The applicant also submitted that the IAD erred in failing to consider the Vietnamese customs and traditions concerning engagements. More particularly, he submitted that in accordance with those customs the number of guests at the ceremony is not counted, and that the IAD erred in drawing attention to the contradiction between the statements of the applicant and the female applicant about the number of guests at their betrothal. But a reading of the reasons for the decision discloses that this contradiction was but one among others and that notwithstanding the Vietnamese custom of not counting the guests, a difference of 100 persons was considered highly significant.

[9]         The applicant also argues that the IAD erred in finding that the female applicant is not credible because she did not mention that she had been included as a dependent of her parents in a previous application for immigration to Canada. As the respondent notes, and I agree, the fact that the applicant was included as a dependent in a previous application for admission to Canada is a relevant fact in assessing her real intentions. Moreover, the visa officer points out in his notes that the female applicant told him she had never made a previous application to immigrate to Canada; it was only when the officer confronted her directly that she finally admitted to having been included as a dependent in an immigration application by her parents.

[10]       Finally, the applicant submits that the IAD did not take into account the applicant's personal circumstances and the evident bona fides of his marriage to the female applicant. However, it is apparent from the record that the IAD assessed the evidence submitted and the circumstances of the applicant before drawing its conclusion concerning the bona fides of the marriage. During the hearing the IAD stated several times that it doubted this good faith. Moreover, the evidence filed by the applicant was evaluated by the tribunal, which concluded that it was insufficient to show that the relationship between the applicant and the female applicant was a close relationship.

[11]       The IAD is presumed to have considered all the evidence before making its decision, even though not all of the evidence is cited in the reasons (Florea v. Canada (M.E.I.), [1993] F.C.J. No. 598 (F.C.A.) (QL)). In view of the contradictions and inconsistencies between the applicant's testimony and the female applicant's statement, the IAD could reasonably find that the betrothal and marriage were not bona fides (Nagy v. Canada (M.E.I.), [1994] F.C.J. No. 321 (F.C.T.D.) (QL)).

[12]       For all these reasons, the intervention of this Court is not warranted and the application for judicial review is dismissed.

                         "Yvon Pinard"

                                Judge

OTTAWA, ONTARIO

May 20, 2004

Certified true translation

Suzanne M. Gauthier, C Tr, LLL

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                            IMM-3863-03

STYLE:                                                NGAN VAN NGUYEN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                      Montréal, Quebec

DATE OF HEARING:                        April 22, 2004

REASONS:                                         Pinard J.

DATED:                                              May 20, 2004

APPEARANCES:

Jean-François Fiset                                FOR THE APPLICANT

Suzon Létourneau                                  FOR THE RESPONDENT

SOLICITORS OF RECORD:

Jean-François Fiset                                FOR THE APPLICANT

Montréal, Quebec

Morris Rosenberg                                  FOR THE RESPONDENT

Deputy Attorney General

of Canada

Ottawa, Ontario