Docket: IMM-1106-11
Citation: 2011 FC 1268
Ottawa, Ontario, November
7, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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YAN CHEN
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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]
The
applicant seeks judicial review of a decision, dated February 1, 2011, by the
Immigration Appeal Division (IAD) of the Immigration and Refugee Board of
Canada (IRB) which dismissed the applicant’s appeal of a decision refusing her
application to sponsor her spouse for permanent residency. For the reasons
that follow the application is dismissed.
[2]
Mrs.
Yan Chen, the applicant, formerly of the Peoples Republic of China (PRC) is a Canadian permanent resident.
She attempted to sponsor her spouse, Mr. Feng, and his son as permanent
residents. Both are citizens of the PRC. Their applications were refused by a
visa officer in Hong Kong. Mr. Feng’s application was refused under sections
39 and 11 of the Immigration and Refugee Protection Act, (S.C. 2001, c.
27) (IRPA) as well as section 4(1) of the Immigration and Refugee
Protection Regulations (SOR/2002-227) (IRPR) on the basis that Mr.
Feng would be unable to support himself in Canada and on the basis that the
marriage between him and Mrs. Chen is not genuine. Mrs. Chen appealed that
decision to the IAD and the appeal was subsequently dismissed.
[3]
Mrs.
Chen has been married twice before and her present husband, Mr. Jin Feng, has
been married once before. Mrs. Chen gained Canadian permanent residency status
when the husband of her second marriage successfully sponsored her. Both Mrs.
Chen and Mr. Feng have children from their previous marriages. Mrs. Chen has a
24-year old daughter who lives with her boyfriend in Vancouver, Canada and Mr. Feng has a
16-year old daughter and a 21-year old son. Mr. Feng’s daughter was not
included in the sponsorship application.
[4]
The
question of a marriage’s genuineness is a question of fact and will attract a
standard of reasonableness per Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190; Buenavista v Canada (Citizenship and Immigration),
2008 FC 609. The issue in this case, therefore, is whether
the IAD’s sponsorship appeal decision is
reasonable.
[5]
The
Court notes that Mrs. Chen does not challenge the IAD’s upholding of the Visa
Officer’s finding that her husband, Mr. Feng, is unable to support himself and
his son financially in Canada. Section 39 of IRPA
provides as follows:
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39. A foreign national is
inadmissible for financial reasons if they are or will be unable or unwilling
to support themself or any other person who is dependent on them, and have
not satisfied an officer that adequate arrangements for care and support,
other than those that involve social assistance, have been made.
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39. Emporte interdiction de
territoire pour motifs financiers l’incapacité de l’étranger ou son absence
de volonté de subvenir, tant actuellement que pour l’avenir, à ses propres
besoins et à ceux des personnes à sa charge, ainsi que son défaut de
convaincre l’agent que les dispositions nécessaires — autres que le recours à
l’aide sociale — ont été prises pour couvrir leurs besoins et les siens.
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Analysis
[6]
The
arguments before me are two-fold: first, that Mrs. Chen and Mr. Feng are not in
a genuine marriage, and secondly, that a breach of natural justice occurred at
the hearing.
[7]
Section
4 of the IRPR provides the legislative framework.
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4. (1) For the purposes of
these Regulations, a foreign national shall not be considered a spouse, a common-law
partner or a conjugal partner of a person if the marriage, common-law
partnership or conjugal partnership
(a) was entered
into primarily for the purpose of acquiring any status or privilege under the
Act; or
(b) is not genuine.
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4. (1) Pour l’application du
présent règlement, l’étranger n’est pas considéré comme étant l’époux, le
conjoint de fait ou le partenaire conjugal d’une personne si le mariage ou la
relation des conjoints de fait ou des partenaires conjugaux, selon le
cas :
a) visait principalement
l’acquisition d’un statut ou d’un privilège sous le régime de la Loi;
b) n’est pas authentique.
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[8]
Pursuant
to section 4, the IAD upheld the decision that Mrs. Chen’s and Mr. Feng’s
marriage was not genuine, finding:
Based
on the evidence before me, I conclude that the appellant has not met the onus
upon her to prove on a balance of probabilities that the marriage to the
applicant was not entered into primarily for the purpose of acquiring status
under the Act and that it is genuine. Therefore, the appeal is dismissed.
[9]
In
making such a finding counsel for Mrs. Chen argues that the IAD performed a
microscopic review of the facts and misrepresented or misconstrued the evidence
before it.
[10]
The
IAD found based on the testimony supplied by Mrs. Chen and Mr. Feng, that their
evidence lacked cogency and was, in some respects, irreconcilable. The IAD
Officer wrote:
The
issue of when the appellant and the applicant began a boyfriend and girlfriend
relationship was canvassed at length at the hearing. The appellant could not
adequately explain how her relationship with the applicant, which she described
as that between friends, changed to a boyfriend and a girlfriend relationship
in February 2006. The appellant travelled to the PRC in November 2006. She registered
her marriage with the applicant two days after her arrival in the PRC. No
credible evidence was adduced at the hearing to explain how the relationship
between the appellant and the applicant progressed from that of a boyfriend and
girlfriend relationship to the marriage proposal and acceptance in September
2006. The absence of an adequate explanation in this important area detracts
from the appellant’s credibility and undermines her claim that the marriage is
genuine.
[…]
I
find that much evidence in this case, including most of the testimony of the
witnesses in significant areas regarding their initial encounters and overall
development of the relationship, lacks cogency.
[11]
When
one spouse substantively contradicts the testimony of the other spouse it is
not microscopic for the decision-maker to treat those substantive
contradictions as undermining the credibility of one or both of them. In this
case, Mrs. Chen was contradicted by Mr. Feng on facts that were important. Answers
as to why Mrs. Chen waited two years to file the permanent residency application,
why Mr. Feng’s daughter was not included in the sponsorship application, and
how often Mrs. Chen spoke to Mr. Feng’s children on the telephone were either not
forthcoming or, when they did, contradictory. Such contradictions support the
IAD’s finding that Mrs. Chen’s and Mr. Feng’s testimony was irreconcilable.
[12]
The
IAD also noted that Mr. Feng was confused as to the circumstances which
prompted his wife’s first divorce with those that prompted his wife’s second
divorce. The IAD member reasonably thought that, in a genuine marriage, this
would be known.
[13]
The
IAD also noted that while the applicants’ relationship progressed from a
friendship in February 2006, to a marriage proposal and acceptance in September
2006 with little contact in-between, supporting its observation that “the
absence of an explanation in this important area detracts from the applicant’s
credibility and undermines her claim that the marriage is genuine.”
[14]
In
addition, the IAD observed a significant discrepancy with respect to the extent
to which Mrs. Chen spoke to Mr. Feng’s two children. In addition, the IAD
observed that even though Mr. Feng was very close to his daughter, Mrs. Chen
spoke to her only six times prior to the application, and not once to his son.
The IAD also found that Mrs. Chen had not demonstrated the efforts to find
employment for Mr. Feng in Canada one would reasonably expect from a spouse.
[15]
Their
answers to the IAD demonstrated a superficial understanding of one another. Mr.
Feng did not to know the details of Mrs. Chen’s previous marriages - nor much
else about her - to the degree that one might reasonably expect of a current
husband. A review of the transcript supports the conclusion that Mrs. Chen and
Mr. Feng were vague about the nature of their relationship and their marriage.
[16]
The
IAD’s finding that their testimony lacks cogency is also within the range of
possible, acceptable outcomes defensible in respect of the facts and law. Cogency
is defined in the Canadian Oxford English Dictionary (Second Edition) as
“compelling” or “convincing.” Neither Mrs. Chen nor Mr. Feng provided any
evidence that supported a more convincing or compelling conclusion than the one
drawn by the IAD. I do not find that the IAD demonstrated a microscopic review
of the facts.
Breach of Natural Justice
[17]
This
is an attractive argument but it remains one that cannot succeed. It is true
that the IAD member demonstrated a pre-occupation with the length of time for
questioning during the hearing, however it cannot be said that the that the
restrictions on time prejudiced Mrs. Chen or her counsel at the hearing or
precluded advancing her case. While the IAD member did at one point instruct
Mrs. Chen’s counsel that he would be permitted to ask only one further question
and argued about it with Mrs. Chen’s counsel and thereby wasted time, the IAD
member did allow Mrs. Chen’s counsel to question her at greater length beyond
this one question.
[18]
I
note as well that: (1) The hearing was set for one half of a day which the IAD
member equated to 3.5 hours of hearing time. Mrs. Chen’s counsel agreed to the
time limit at the beginning of the hearing and did not voice any objections to
the time allotted; (2) Counsel for the Minister was subject to the same time
constraints; (3) Mrs. Chen was not prejudiced substantively, or procedurally,
because she was able to present as much evidence as time allowed; and (4)
Counsel was advised to allocate his time carefully between his two witnesses,
and he indicated that he would do this within the allotted time.
[19]
Courts,
at all levels, and administrative tribunals have the discretion, if not the
obligation, to ensure that the proper balance is struck between ensuring a full
and fair hearing and that of ensuring that access to justice is effective and
efficient. How that balance is set is discretionary, but supervisory courts
will always ensure that the fundamentals of natural justice are not
compromised. A right to a fair and full hearing does not require tribunals, or
courts, to abdicate their control over dockets to the parties. What
constitutes a fair hearing is largely a contextual analysis, informed by the
nature of the rights in issue, the provisions of the legislative or regulatory
scheme which underlies the decision making process. A fair hearing is not
necessarily the “fullest” of hearings. In the end, the controlling
determination of fairness will be whether the applicant or party had an
opportunity to respond to the case against them.
[20]
The
application for judicial review is dismissed.
[21]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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