Date: 20100224
Docket: IMM-2996-09
Citation: 2010 FC 219
Ottawa, Ontario, February 24,
2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
and
HUNG
VAN NGUYEN
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72 (1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review
of a decision of the Immigration Appeal Division (IAD) of the Immigration and
Refugee Board, dated May 21, 2009 (Decision), in which the IAD allowed the
Respondent’s sponsorship appeal and determined that the prior refusal of his
sponsorship application was not valid in law.
BACKGROUND
[2]
The Respondent
is a Canadian citizen who attempted to sponsor a spouse he married in 2004 (sponsored
spouse) and with whom he had a child in 2005.
[3]
Prior
to a decision being made on the Respondent’s application, Citizenship and
Immigration Canada (CIC) received a letter stating that the Respondent was
married to another woman (Ms. Nguyen), and was the father of her child. Ms.
Nguyen claimed to have had been in a common-law relationship with the
Respondent since 1996. Attached to this letter was a copy of the marriage
certificate between the Respondent and Ms. Nguyen and a statutory declaration
which was sworn by Ms. Nguyen in January, 2006. A further statutory declaration
was received by CIC from Ms. Nguyen in November, 2006. In January, 2007, Ms.
Nguyen sent further correspondence to immigration officials in which she
claimed that the Respondent is a bigamist who is committing an illegal offence.
[4]
The Respondent’s
application was rejected pursuant to section 117(9)(c) of the Act. He filed a
notice of appeal for this decision in August, 2007.
[5]
The
Respondent provided submissions in which he denied living in a common-law
relationship with, and being married to, Ms. Nguyen.
[6]
In
November of 2007, Ms. Nguyen provided another statutory declaration in which
she recanted that she and the Respondent had lived in a common-law
relationship. Rather, she stated that she and the Respondent had lived as
roommates from 2003-2007.
DECISION UNDER REVIEW
[7]
The IAD
found that the Respondent was “persuasive in describing living with [Ms.
Nguyen] as a roommate.” However, the IAD noted that “the evidence became more
confusing as the appellant had difficulty giving evidence about an alleged
marriage to which he adamantly denied.” Nonetheless, the IAD believed that,
although the Respondent did not have many details, this was due to a “genuine
lack of knowledge rather than an attempt to deceive the panel.”
[8]
The Respondent’s
marriage to the sponsored spouse was determined to be his second marriage.
While the Respondent had tried to sponsor his sponsored spouse in May, 2006, he
was unable to do so because “the three-year financial undertaking had not
passed since the landing of his former spouse on May 22, 2003.” The Respondent and
his former spouse separated shortly thereafter.
[9]
The
IAD was satisfied with the Respondent’s evidence that he was not in a
common-law relationship with Ms. Nguyen. It accepted the Respondent’s evidence
that he had asked Ms. Nguyen to provide a birth certificate for the child and
had offered to take a paternity test. The IAD also noted that the month-long
delay by her counsel in forwarding the first complaint from 2006 to CIC was
cause for concern as to the veracity of the documentation. The IAD held that
“the voracity (sic) of [Ms. Nguyen] in threatening criminal charges for
bigamy and fraud, as set out in her documentation … gives the documentation
little weight.”
[10]
Moreover,
the IAD determined that the Respondent was credible “in describing his lack of
contact with [Ms. Nguyen] once he moved from her residence.”
[11]
The
IAD was satisfied that the Respondent was not legally married to, and had not lived
in a common-law relationship with Ms. Nguyen. The Respondent also denied
knowledge of how she obtained the marriage certificate, and has not taken any
action to have the marriage certificate voided because he believed the marriage
to be false.
[12]
The
IAD found the totality of the evidence persuasive. Furthermore, it determined
that the family photographs taken during the Respondent’s visit to his wife and
daughter were “one indicia of a genuine relationship, especially with his daughter.”
Thus, the IAD was satisfied that the Respondent “has established that he was
not the spouse of [Ms. Nguyen] when his marriage to the applicant took place on
May 5, 2004.”
ISSUES
[13]
The
Applicant submits the following issues on this application:
1.
Whether
the IAD committed a reviewable error in ignoring or misconstruing evidence in
its finding of facts;
2.
Whether
the IAD failed to provide adequate reasons for its findings of fact;
3.
Whether
the IAD acted without jurisdiction by considering factors that were irrelevant
to the determination of the issue.
STATUTORY PROVISIONS
[14]
The
following provisions of the Act are applicable in these proceedings:
|
Family reunification
12. (1) A foreign national may be selected as a member of the family
class on the basis of their relationship as the spouse, common-law partner,
child, parent or other prescribed family member of a Canadian citizen or
permanent resident.
|
Regroupement familial
12. (1) La sélection des étrangers de la catégorie
« regroupement familial » se fait en fonction de la relation qu’ils
ont avec un citoyen canadien ou un résident permanent, à titre d’époux, de
conjoint de fait, d’enfant ou de père ou mère ou à titre d’autre membre de la
famille prévu par règlement.
|
[15]
The
following provisions of the Immigration and Refugee Protection Regulations,
SOR/2002-227 are also applicable in these proceedings:
|
117(9)
A foreign national shall not be considered a member of the family class by
virtue of their relationship to a sponsor if
…
(c) the foreign
national is the sponsor's spouse and
(i) the sponsor or the
foreign national was, at the time of their marriage, the spouse of another
person, or
(ii) the sponsor has lived
separate and apart from the foreign national for at least one year and
(A) the sponsor is the
common-law partner of another person or the conjugal partner of another
foreign national, or
(B) the foreign national is
the common-law partner of another person or the conjugal partner of another
sponsor;
|
117(9)
Ne sont pas considérées comme appartenant à la catégorie du regroupement
familial du fait de leur relation avec le répondant les personnes
suivantes :
…
c)
l’époux du répondant, si, selon le cas :
(i) le répondant ou cet
époux étaient, au moment de leur mariage, l’époux d’un tiers,
(ii) le répondant a vécu
séparément de cet époux pendant au moins un an et, selon le cas :
(A) le répondant est le
conjoint de fait d’une autre personne ou le partenaire conjugal d’un autre
étranger,
(B) cet époux est le
conjoint de fait d’une autre personne ou le partenaire conjugal d’un autre
répondant;
|
STANDARD
OF REVIEW
[16]
The
Supreme Court of Canada in Dunsmuir
v. New Brunswick,
2008 SCC 9,
[2008] 1 S.C.R. 190 held that a standard of review analysis need not be conducted
in every instance. Instead, where the standard of review applicable to the
particular question before the court is well-settled by past jurisprudence, the
reviewing court may adopt that standard of review. Only where this search
proves fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[17]
The
issue of whether the IAD erred in its assessment of the evidence before it is a
factual issue. Accordingly, it will be reviewed on a standard of
reasonableness. See Dunsmuir, above, at paragraph 64. The Applicant has
alleged that the IAD exceeded its jurisdiction by considering irrelevant
factors. However, precedent jurisprudence makes it clear that the determination
of whether or not a decision maker relied on irrelevant factors in making a
discretionary decision is reviewable on a standard of reasonableness. See Baker
v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. No. 39 at paragraph 53 (QL); Dunsmuir
at paragraph 14.
[18]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”: Dunsmuir, above, at paragraph 47. Put another way, the Court
should only intervene if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[19]
Whether
the IAD failed to provide adequate reasons for its conclusion is an issue of
procedural fairness, which is to be reviewed on a standard of correctness. See Weekes (Litigation Guardian) v. Canada (Minister of Citizenship and
Immigration), 2008 FC
293, 71 Imm. L.R. (3d) 4.
ARGUMENTS
The Applicant
IAD Ignored Evidence
[20]
The Applicant submits
that the IAD failed to consider the existence of the Marriage Certificate and
Marriage License dated 2005 which showed the Respondent as groom and Ms. Nguyen
as bride.
[21]
The IAD clearly erred
in failing to consider the marriage certificate provided by Ms. Nguyen. The IAD
found that the “voracity of [Ms. Nguyen] in threatening criminal charges for
bigamy and fraud, as set out in her documentation, unfounded for appeal
purposes and gave the documentation little weight.” Nonetheless, the IAD erred
in not considering the documents, since jurisprudence has held that government documents
are presumed to be valid unless proven otherwise. See, for example, Nika v. Canada (Minister of Citizenship and Immigration), 2001 FCT 656, [2001] F.C.J. No. 977 at
paragraph 12.
The IAD erred in ignoring these
documents in its analysis and its finding that the Respondent was never married
to, or lived in a common-law relationship with, Ms. Nguyen.
[22]
No evidence was
presented with regard to the validity of the documents. Rather, the Respondent
simply denied the marriage and denied living with Ms. Nguyen, even though their
driver’s licenses had the same address.
[23]
The Respondent failed
to provide any evidence such as a handwriting sample or a letter from the
Minister who performed the ceremony to show that the certificate was invalid. The
Respondent provided only “his vehement denial and a Recantation from [Ms.
Nguyen] which does not even mention the marriage certificate which she had
earlier provided to CIC.”
[24]
The IAD further erred
by ignoring the inconsistencies and inadequate testimony of the Respondent. The
Respondent could not remember significant details with regard to his situation,
and also failed to provide any reasons for his inability to do so. Furthermore,
he provided inconsistent evidence with regard to whether or not he knew Ms.
Nguyen.
Inadequate
Reasons
[25]
The IAD failed to
provide adequate reasons to support its conclusion against valid documentary
evidence which demonstrated the contrary. The IAD did not explain why it placed
no weight on this documentary evidence, especially in light of its earlier
description of this evidence as persuasive, and given the fact that the
evidence included official government documents whose validity has not been
challenged. See, for example, Hilo v. Canada
(Minister of Employment and Immigration)(1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199.
Consideration
of Irrelevant Factors
[26]
The
IAD erred by considering material that was irrelevant to the purpose of the
appeal. The IAD relied on photographs provided by the Respondent as a positive
factor to establish the veracity of the relationship between the Respondent and
his spousal sponsor. The Applicant contends that section 25 of the Act cannot
appropriately be used in this appeal to support the claim and make the spousal
sponsor a member of the family class. Rather, the provision can only be used
where the decision was made independent of the factors enumerated in section
25. See sections 25 and 65 of the Act.
The Respondent
[27]
The Respondent
has not filed a memorandum of arguments or a notice of appearance for this
hearing.
ANALYSIS
[28]
The
Respondent has made no submissions on this application and no one appeared on
his behalf at the hearing.
[29]
I
have examined the Applicant’s written submissions and heard counsel on behalf
of the Applicant.
[30]
My
review of the record confirms that the issues raised by the Applicant are
justified and supported by the record. The Decision contains the reviewable
errors outlined in the Applicant’s submissions which I hereby adopt as the
reasons in this decision.
[31]
In
addition, immediately prior to the hearing, the Respondent, Mr. Van Nguyen,
faxed the Court and provided his consent to this application. The reason he
gave was that “there has been a breakdown in my relationship with my spouse. I
am not going to pursue the sponsorship application any further.”
[32]
In
dealing with this matter upon return for reconsideration the IAD should take
note of this advice from the Respondent and proceed accordingly.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1.
The
application is allowed. The decision is set aside and the matter is referred
back to a differently constituted panel of the Appeal Division for
re-determination.
2.
There
is no question for certification.
“James
Russell”
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