Date: 20120515
Docket: IMM-4517-11
Citation: 2012 FC 587
Winnipeg, Manitoba, May 15, 2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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DUY HUYNH NGUYEN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Duy Huynh Nguyen seeks
judicial review of a decision of the Immigration Appeal Division (the Board)
which determined that Mr. Nguyen’s wife, Sofiya Konovalova Nguyen, was excluded
from membership in the family class because their marriage was not genuine or
was entered into for the purpose of acquiring status or privileges under the Immigration
and Refugee Protection Act, R.S.C. 1985, c. I-21 [IRPA].
[2]
Mr.
Nguyen argues that the Board erred by drawing an adverse inference from the
failure of his wife to testify at the appeal hearing without properly
considering whether her testimony was in fact required.
[3]
For
the reasons that follow, I am satisfied that the Board’s decision was
reasonable. As a result, the application for judicial review will be dismissed.
Background
[4]
Mr.
Nguyen is a twenty-eight year old Canadian citizen of Vietnamese descent. He
resides with his mother and two brothers in Winnipeg, and worked part-time as a grocery clerk
and full-time as an accounting assistant.
[5]
Ms.
Konovalova Nguyen is a twenty-three year old Russian citizen living in Moscow. She studies foreign
languages and linguistics, specializing in Japanese and English, and has been
learning Vietnamese since meeting Mr. Nguyen. She hopes to work as a foreign
language teacher.
[6]
The
couple first met on March 27, 2009 through an on-line pen-pal site called
“Interpals”. They communicated on a near daily basis through Skype, telephone
and e-mail.
[7]
Shortly
after they began corresponding, the couple began discussing the possibility of
marriage. Mr. Nguyen suggested that Ms. Konovalova Nguyen contact his friend’s
wife, who was Uzbek but living in Canada. He also began researching foreign marriage
requirements.
[8]
On
July 16, 2009, Mr. Nguyen traveled to Russia to meet Ms. Konovalova Nguyen in person. Three
days later, he proposed, and the couple married one week later. Ms. Konovalova
Nguyen’s family was in attendance at the wedding but Mr. Nguyen’s family was
not.
[9]
The
paperwork for a marriage in Russia can take up to three months to obtain. However, Ms.
Konovalova Nguyen had already made the necessary arrangements to register a
marriage before Mr. Nguyen arrived in Moscow even though the two were not yet engaged.
[10]
Mr.
Nguyen has visited his wife on one occasion since the wedding. A second visit
was cancelled due to difficulties in obtaining an entry visa to Russia for Mr. Nguyen.
[11]
In
November of 2009, Ms. Konovalova Nguyen applied for permanent residence in Canada as a member of the
family class. However, an immigration officer refused the application, having
determined that her marriage to Mr. Nguyen was not genuine and was entered into
by her for the purpose of immigrating to Canada.
[12]
The
couple appealed the immigration officer’s decision to the Board. Mr. Nguyen
appeared at the hearing with counsel and testified in support of the appeal.
Ms. Konovalova Nguyen did not testify at the hearing.
The Board’s Decision
[13]
The
Board found Mr. Nguyen to be a credible witness and was satisfied that his
intentions in entering into the marriage were sincere. However, the Board found on a
balance of probabilities that Ms. Konovalova Nguyen’s marriage to Mr. Nguyen
was not genuine, and was entered into by her for the purpose of acquiring
status or privileges under IRPA as contemplated by section 4 of the Immigration and
Refugee Protection Regulations, SOR/2010-208 [Regulations].
[14]
In
coming to this conclusion, the Board reviewed the events leading up to the
marriage, including the haste with which the marriage had taken place and the
circumstances surrounding the wedding itself. The Board also had regard to Ms. Konovalova Nguyen’s
long-time desire to leave Russia, her personal history and her conduct after the marriage. The
Board also considered the differences in the couple’s cultural and religious
backgrounds and in their financial and educational levels.
[15]
The
Board was also very troubled by the fact that Ms. Konovalova Nguyen had refused
to testify at the hearing, noting repeatedly in its reasons that she was not
present to address the Board’s concerns surrounding the marriage. Mr. Nguyen
had explained that his wife was angry with him over his inability to
visit her in Russia, and that
this is why she refused to testify at the IAD hearing. However, the Board drew
an adverse inference from Ms. Konovalova Nguyen’s refusal to testify and concluded
that it indicated an indifference to the outcome of the appeal.
[16]
The
Board also did not accept Mr. Nguyen’s claim that his wife had been discouraged
from testifying after a negative experience with the immigration officer. The
Board noted that this explanation was not borne out by the CAIPS notes.
[17]
In
light of the foregoing findings, the appeal was dismissed.
The Issue on the Application
[18]
Mr.
Nguyen argues that the Board erred by drawing an adverse inference from Ms.
Konovalova Nguyen’s failure to testify at the appeal hearing without properly
considering whether her testimony was in fact required.
Analysis
[19]
Subsection
4(1) of the Regulations
provides that a foreign national shall not be considered a spouse of a person
if the marriage (a) was entered into primarily for the purpose of acquiring any
status or privilege under the Act or (b) is not genuine. The onus is on an
applicant to prove that the relationship satisfies both prongs of the test: Kaur
v. Canada (Minister of
Citizenship and Immigration), 2010 FC 417, [2010] F.C.J. No. 482 (QL)
at para. 15.
[20]
Findings
as to whether a relationship is genuine or was entered into for immigration
purposes are factual determinations which are reviewable on the reasonableness
standard: Kaur, above at para. 14.
[21]
Mr.
Nguyen relies on the Board’s decision in Mann v. Canada (Minister of
Citizenship and Immigration), [2005] I.A.D.D. No. 198 (QL) as having
established a legal test that must be applied in order to determine whether it
is appropriate to draw an adverse inference from the failure of the sponsored
spouse to testify at an appeal before the Board.
[22]
At
paragraph 14 of the Mann decision, the Board observes that there may be
cases where the testimony
of the foreign spouse may be required to discharge the evidentiary burden. The
Board further provides a non-exhaustive list of situations where it may “be
advisable or even necessary to call the applicant as a witness”.
[23]
These
include circumstances where, for example, there are specific and significant
inconsistencies in the record or where the foreign spouse has a questionable
immigration history. Other such cases include situations where there is an
obvious reason to question the motivation of the applicant or where there is
little documentary evidence to corroborate the testimony of the appellant.
[24]
The
Board went on in Mann to observe that there may also be cases where the
testimony of the foreign spouse may not be necessary, including cases where the
Canadian spouse is able to persuasively address the concerns.
[25]
Mr.
Nguyen says that the Board erred in this case by failing to apply the Mann test
in considering whether an adverse inference should be drawn from Ms. Konovalova
Nguyen’s refusal to testify and in failing to consider whether her answers to
the Board’s concerns were available from the record before it.
[26]
I do
not accept this argument.
[27]
While
the Board did not expressly reference the Mann decision, it clearly
identified its concerns, many of which fit squarely within the examples cited
by the Board in Mann as situations where the testimony of the foreign
spouse may be required.
[28]
Ms.
Konovalova Nguyen had expressed a long-standing desire to leave Russia. She entered into a
succession of relationships with men that she had met over the Internet. Mr.
Nguyen was the first man who actually followed through on his promise to marry
her, and the wedding took place within three months of the couple’s first online
contact and within days of their first in-person meeting. These circumstances
provide an obvious reason to question Ms. Konovalova Nguyen’s motivation in
marrying Mr. Nguyen.
[29]
The
Board’s concerns were amplified by the differences in the couple’s cultural and
religious backgrounds, their financial levels and their educational
backgrounds. There was, moreover, evidence before the Board that Ms. Konovalova
Nguyen continued to see a former boyfriend and go drinking with other men after
her marriage.
[30]
None
of these findings have been challenged by Mr. Nguyen and they quite reasonably
gave rise to concerns with respect to Ms. Konovalova Nguyen’s intentions in
marrying Mr. Nguyen and the genuineness of the marriage.
[31]
Moreover,
the Board’s concern was not just Ms. Konovalova Nguyen’s failure to testify,
but her refusal to do so. The Board’s finding that her refusal to
testify suggested indifference on her part to the outcome of the appeal is one
that was open to it on the record before it. It was entirely reasonable for the
Board to draw an adverse inference against Ms. Konovalova Nguyen in these
circumstances.
[32]
I
would also note that the Board had a number of reasons for dismissing the
appeal, quite apart from the adverse inference drawn from the failure of Ms.
Konovalova Nguyen to testify. These were clearly explained in the Board’s
reasons and the decision has the justification, transparency and intelligibility
required of a reasonable decision.
Conclusion
[33]
For
these reasons, the application for judicial review is dismissed.
[34]
Mr.
Nguyen proposes the following question for certification:
Where a visa officer refuses an applicant
for immigration based on Immigration
and Refugee Protection Regulations 4(1) and the sponsoring spouse appeals to the Immigration
Appeal Division of the Immigration and Refugee Board, does the Board commit a
legal error by drawing an adverse inference from the absence of telephone
testimony from the applicant for immigration without engaging in an analysis to
determine whether the evidence of the appellant to the Board alone is
sufficient?
[35]
This
is not an appropriate question for certification. The Board’s concerns were not
with Mr. Nguyen’s evidence. It accepted that his intentions in
entering into the marriage were sincere.
[36]
The
Board explained why it had concerns with respect to Ms. Konovalova Nguyen’s
intentions based upon the record before it, and I have concluded that those
concerns were reasonable. Consequently, the answer to the question would not be
dispositive of this case and I decline to certify it.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application
for judicial review is dismissed; and
2. No serious
question of general importance is certified.
“Anne
Mactavish”
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