Date: 20141216
Docket: IMM-4102-13
Citation:
2014 FC 1195
Toronto, Ontario, December 16, 2014
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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THUC PHUONG DANG
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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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JUDGMENT AND REASONS
[1]
This is an application under subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for
judicial review of the decision of the Immigration Appeal Division [IAD, panel]
of the Immigration and Refugee Board, dated May 23, 2013 [Decision], which
refused the Applicant’s appeal.
[2]
The Applicant appealed to the IAD from the
decision of a visa officer in Singapore [Officer], in which the Officer refused
her husband’s application for a permanent resident visa under the family class,
because he found their marriage was not genuine and was entered into primarily
for the purpose of acquiring status or privilege under IRPA.
[3]
This application for judicial review is allowed
for the following reasons.
I.
Background
[4]
The following are the facts that were before the
IAD.
[5]
Thuc Phuong Dang [the Applicant] is a 41 year
old Canadian citizen, born in Vietnam, and is of Chinese descent. Her husband
[Mr. Huynh] is a 40 year old citizen of Vietnam, of Chinese descent.
[6]
These are not sophisticated parties. Mr. Huynh
has the equivalent of a Grade 2 education, and the Applicant, the equivalent of
Grade 7 education: Certified Tribunal Record [CTR], pages 21-22. Their English
skills are very basic. The mother tongue of both is Chinese.
[7]
The couple hired a Vietnamese lawyer to help
them with the sponsorship application. The lawyer neither completed the
applicant portions of the forms properly, nor did he sign the required “third party representative” portion of the forms. As
such, it was not apparent to Citizenship and Immigration [CIC] that the
applicants had any representative. One of the major reasons for refusal by the
visa officer, as confirmed by the IAD, was that family information was left out
of the immigration forms.
[8]
The Applicant was married once previously. She
married her first husband in Vietnam in 2002 and sponsored him to come to Canada. He was issued a visa in January 2004, and obtained a divorce in September 2005.
This is Mr. Huynh’s first marriage.
[9]
The Applicant went to visit Mr. Huynh several
times since she met him in Vietnam for the first time in 2006. Specifically,
she visited in 2007. She went twice in 2008: on her first trip, the couple was
engaged and had a celebratory engagement party. The Applicant returned later in
2008 and the couple married on December 28, 2008 in Vietnam. The Applicant
returned to Canada in February 2009.
[10]
The couple submitted an application for
permanent residence under the family class for Mr. Huynh, whose sponsorship
application was sent to the Canadian visa post in Singapore in July 2009.
[11]
The Applicant returned to Vietnam for the visa office interview on January 25, 2011. She stayed in Vietnam from January 22 to
March 10, 2011.
[12]
On February 8, 2011, the Officer refused the
application, finding that the marriage was not genuine, and was entered into
for the purpose of gaining admission to Canada.
[13]
The Applicant appealed the Officer’s decision to
the IAD. The IAD dismissed the appeal, and that Decision is now under review.
II.
Decision under Review
[14]
The IAD panel conducted a de novo hearing,
and concluded that the Applicant had failed to establish that the marriage was
genuine, and to establish that it was not entered into primarily for the
purpose of acquiring a status or privilege under IRPA.
[15]
The panel found that the evidence of the
Applicant and Mr. Huynh was not credible, that Mr. Huynh had concealed that he
had siblings living in the U.S. and Canada, and that the parties had a lack of
knowledge of each other that indicated a non-genuine marriage.
[16]
Specifically, the Board found certain evidence
not to be credible and trustworthy, concluding that the Applicant failed to
prove that the marriage “is a genuine one and was not
entered into primarily for the purpose of acquiring any status or privilege under
the IRPA” (Decision at para 34). These findings are addressed in the
Analysis section of these Reasons, below.
III.
Issues
The Applicant
raised the following three issues about the IAD decision:
1.
it demonstrates a reasonable apprehension of
bias;
2.
it was not reasonable in its conclusions; and
3.
it breached the Applicant’s right to procedural
fairness.
The bulk of the hearing focused on the
second issue, which was the strongest of the Applicant’s arguments.
IV.
Relevant Provisions
[17]
Subsection 12(1) of IRPA sets out who may be a
member of the family class:
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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.
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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.
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[18]
Section 4 of the Immigration and Refugee
Protection Regulations (SOR/2002-227) states that a foreign national will
not be considered a spouse if the marriage was not genuine or was entered into
primarily for the purpose of acquiring immigration status:
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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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V.
Submissions of the Parties
[19]
The Applicant submits that the Decision was
unreasonable, as the panel misapprehended or ignored key evidence, namely:
•
the testimony of three witnesses who were
present at the wedding and testified to the genuineness of the marriage;
•
220+ pages of documentary evidence, including
evidence of phone calls, wire transfers, visits, and cards exchanged, except
one wedding photo, noting that the informal attire and flip flops worn by some
of the guests in that photo indicated the wedding was staged; and
•
written submissions from Applicant’s counsel.
[20]
The Applicant also contends that the Board erred
by fixating on the Applicant’s first marriage, exceeding its jurisdiction by
ordering evidence regarding the divorce and making a number of unreasonable
inferences not supported by the evidence.
[21]
Further, the Applicant submits that the panel
denied her procedural fairness by relying on evidence from the Officer that Mr.
Huynh was not credible, after the Officer had consulted three outside sources
on the expense of obtaining driver’s licenses and used the information to cast
doubt on Mr. Huynh’s credibility without giving him an opportunity to address
it.
[22]
Finally, the Applicant submits that the Board
member demonstrated a reasonable apprehension of bias by making a frivolous
allegation that the wedding was staged.
[23]
The Respondent, on the other hand, submits that
the panel properly considered the evidence. It did not err in seeking the
evidence regarding the Applicant’s divorce, as it has the power of production
and inspection of documents, and may receive and base decisions on any evidence
adduced in proceedings that it considers credible and trustworthy (IRPA, ss
174-175).
[24]
The Respondent submits that the panel did not
ignore evidence, noting key testimony and witnesses in the Decision. The panel
chose to concentrate on the evidence of the Applicant and Mr. Huynh, their
knowledge of each other’s lives, their explanations for failing to be together,
and their lack of forthrightness.
[25]
Contrary to the Applicant’s allegations, the
Respondent submits that the panel’s inferences were reasonable and that it was
open to the panel to weigh and assess evidence.
[26]
With respect to the Applicant’s allegation that
she was denied procedural fairness as a result of evidence wrongly relied on by
the Officer, the Respondent submits that the Decision under review was an
appeal de novo and the information obtained by the Officer regarding the
availability of driver’s licenses in Vietnam had no bearing on the panel’s
final decision.
[27]
Finally, the Respondent submits that the
Applicant has not demonstrated a reasonable apprehension of bias. The threshold
for such a finding is very high, and is not met in this case.
VI.
Standard of Review
[28]
In Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir],
the Supreme Court of Canada held that a standard of review analysis does not
need to be conducted in every instance. Instead, where the standard of review
applicable to a particular question before the Court is well-settled by past
jurisprudence, the reviewing court may adopt that standard.
[29]
Both parties submit, and I agree, that the
genuineness of a marriage is a question of fact and reviewable on the
reasonableness standard (Chen v MCI, 2011 FC 1268 at para 4). Whether or
not a marriage is entered into for the purpose of obtaining status under IRPA
is also a question of fact, reviewable on a reasonableness standard (Dunsmuir,
above, at para 51).
[30]
Procedural fairness is reviewable on a
correctness standard (Mission Institution v Khela, 2014 SCC 24 at
para 79; Sidhu v MCI, 2012 FC 515 at para 38).
VII.
Analysis
A.
Issue 1: Has the Applicant established a
reasonable apprehension of bias?
[31]
The allegation of bias must be dealt with first.
Where bias is found, the decision must be set aside, as the Court cannot
speculate whether another decision-maker would have reached the same conclusion
on the merits of the claim (Luzbet v MCI, 2001 FC 923 [Luzbet] at
para 4).
[32]
No deference is owed to the decision-maker on
the issue of bias (Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29; Luzbet, above, at para 5).
[33]
Mr. Justice de Grandpré
articulated the test for the reasonable apprehension of bias in Committee
for Justice and Liberty v Canada (National Energy Board), [1978] 1 S.C.R. 369
at 394-395:
[T]he apprehension of bias must be a reasonable
one held by reasonable and right minded persons, applying themselves to the
question and obtaining thereon the required information. In the words of the
Court of Appeal, that test is "what would a informed person, viewing the
matter realistically and practically--and having thought the matter
through--conclude. […]
[…] The grounds for this apprehension must,
however, be substantial and I entirely agree with the Federal Court of Appeal
which refus[e] to accept the suggestion that the test be related to the
"very sensitive or scrupulous conscience".
[34]
The threshold for a finding of perceived bias is
high (R v RDS, [1997] 3 S.C.R. 484 [RDS] at para 112; Tchiegang v
MCI, [2003] FCJ No 343 at paras 15, 19). Further, alleging bias is a “serious step that should not be undertaken lightly” (RDS,
above, at para 113; Es-Sayyid v Canada (MPSEP), 2012 FCA 59 at para 50).
[35]
While I disagree that the panel had an adequate
basis for suggesting that the wedding was staged, there is no merit to the
Applicant’s contention that this demonstrated a reasonable apprehension of bias
on the part of the panel. The Applicant has provided nothing more than
arguments that the Board member (i) could have easily verified the number of
guests at the wedding by watching the videos provided, (ii) is culturally
insensitive and ignorant of cultural norms and (iii) did not mention the guests
who wore formal attire to the wedding, the stifling temperature in Vietnam.
[36]
As such, the Applicant has not met the high
threshold required to establish that the Board’s findings showed an
apprehension of bias in this case. Whether those findings were unreasonable is
another matter altogether, and that is both the second, and strongest, argument
raised by the Applicant.
B.
Issue 2: Was the panel’s decision reasonable?
[37]
The jurisprudence states that a tribunal’s
decision must demonstrate “justification, transparency
and intelligibility within the decision-making process” and fall “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, at
para 47).
[38]
This case was based on the Board’s negative
credibility findings based on various factual findings. Several of these
findings are problematic -- some of these going back to the Officer’s
decision. Credibility findings based on problematic factual foundations lead
to fundamental weaknesses in justifying the Decision. In my view, the Board’s
Decision was unreasonable for these reasons.I will deal with the foundational
findings of the Board and problems with them, in the order that they were
raised by the Board in its Decision.
Employment discrepancies
[39]
“The parties gave
contradictory information about each other at the interview at the visa office
that took place on January 25, 2011” (Decision
at para 16). The panel did not accept the explanation that the Applicant and
Mr. Huynh did not understand some of the questions posed by the Vietnamese
interpreter as they are more comfortable speaking Chinese, their native
language, which is the language in which they communicate.
[40]
First, it is clear from a reading of the visa
office transcript that there were translation issues which led in part to the
difficulties, because the interview was done in Vietnamese and not Chinese, the
mother tongue of both applicants. Mr. Huynh pointed out to the Officer that he
was having translation difficulties, stating that “I
didn’t understand some questions” and “I am better
in Chinese”. The Officer provided scant regard to that statement in
terms of clarifying the issue. The Board member found that “there does not seem to be any indication that the Applicant or
the Appellant are confused by the questions or are having difficulty
understanding the interpreter”.
[41]
I find the couple’s testimony before the Officer
quite consistent for a newly married couple separated by thousands of miles.
The Applicant and Mr. Huynh both stated that he worked in glass moulding. Mr.
Huynh said he did other things in his spare time, since the business was not
going as well as it had in the past because his brother (a welder) left for Canada. He thus had filled his time studying, and taking driving lessons.
[42]
With respect to Ms. Dang’s work, she said at the
visa office interview that she worked full time making couches. Mr. Huynh
answered that she made pool buoyancy devices, on a seasonal basis, because
there were no orders during the winter. However, the apparent inconsistencies
with respect to Ms. Dang’s work are not at issue because the IAD panel determined
that there had been obvious confusion in the interpreter’s terminology relating
to the Applicant’s work at the visa office interview.
[43]
On the whole, I find that the explanation of the
Applicant and Mr. Huynh, in regard to their employment and outside work
activities, were consistent (see, for instance, page 476, CTR).
Failure to
disclose family members/pull factor
[44]
The Board member finds that Mr. Huynh’s
explanation for failing to disclose in his application his siblings living in
the U.S. and Canada was unsatisfactory. He stated that he was told he did not
need to list siblings living outside Vietnam, but the panel found it more
likely that he wished to conceal their existence as they could be interpreted
as a “pull” factor motivating the marriage, and
obtaining Canadian citizenship would lead to easier access to his siblings in
North America, and vice versa.
[45]
There are two issues with this finding of the
panel. First, the Applicant did not conceal that he had siblings abroad
because he stated in his immigration application that one of the US-based
siblings came to his 2008 wedding. He advised that his consultant told him
that his other siblings did not need to be added to the form. While this
explanation may not be satisfactory for others completing immigration forms,
one has to consider the context.
[46]
This was an applicant with a Grade 2 education
who did not speak English. So he hired a professional who he thought would
help. However, the lawyer evidently failed him by providing wrong advice
regarding the form, and failing to identify him or herself on the form, in
effect become a “ghost” representative.
[47]
The government has been attempting to prevent
this kind of nefarious conduct from happening but it unfortunately sometimes
happens, and impacts the vulnerable, such as Mr. Huynh. The Board member did
not address any of these facts as to why there were issues on the form, despite
clear testimony from the Applicant (see pages 485-486, CTR). If the applicant
had indeed been trying to conceal the siblings in North America, he would not
have written about any of them up on the application form. Furthermore, Mr.
Huynh did not try to conceal that he had a brother in Canada during his interview, per his comments in the CAIPS notes from the visa office interview.
[48]
The Board member simply finds “The Applicant’s reason for not listing all of his siblings in
his Application for Permanent Residence is that he was told he did not need to
list siblings who lived outside Vietnam”. Nowhere did the Board
reference the fact that he had retained a representative to assist him given
his difficulties with English, who gave him this wrong advice. And nowhere did
the Board reference that he indeed listed a sibling in the U.S. on the application form.
Attempt to
make first marriage appear longer than it was
[49]
The Board member finds that the Applicant was
not forthright with the panel, in trying to make her first marriage appear to
have lasted longer than it did. The panel ordered the production of the court
file regarding her divorce in order to verify the divorce date.
[50]
I do not find that the Applicant misled or
provided inaccurate information during the hearing. There was some confusion
over the divorce date and the separation date, but the Applicant was clear that
she and her first husband had made the decision to obtain a divorce in 2004.
She was evidently confused about the “divorce” and
“separation”. Again, the Board member was aware
that there was some translation confusion (see page 464, CTR – “MEMBER: I know, it is confusing”). The panel member
was also aware that this was a woman with a Grade 7 education.
[51]
Unsophisticated parties need to be given some
latitude in technical areas, such as Canadian family law: when questioned she
made clear the distinction between separation and divorce, and any
inconsistencies that first arose were again, in my reading, issues relating to
confusion during the hearing, rather than any deliberate attempt to mislead.
The Applicant was quite forthright with the fact that the marriage didn’t work
out, and that the couple had been separated in 2004 and divorced in 2005 by
filing divorce papers (see pages 463-465, CTR).
Failure to
visit spouse
[52]
The Board member found that “in a genuine relationship, the Appellant would make more of an
effort to be with her husband”.
[53]
This finding in and of itself was troubling
because the Applicant visited Mr. Huynh in Vietnam each year from 2006 when
they met, to 2011 when the CIC interview took place, with the exception of
2010.
[54]
Apart from the efforts evidenced that she did
make a visit to (and otherwise communicate with) her spouse, the Board member
found that the Applicant’s reasons for not visiting her husband for one period
of nearly two years were unsatisfactory. These reasons provided by the
Applicant included the fact that she was afraid to ask for time off work, given
its seasonal nature, and the fact that her siblings were not able to care for
her ailing mother, so the task fell to her. The Board member wrote “This is not believable, as clearly the Appellant’s mother is
either cared for or able of [sic] cope on her own when the Appellant is
working” (Decision at para 27).
[55]
I disagree. The Applicant’s testimony was
perfectly believable on this count. First, the Board member ignored the
Applicant’s evidence that she was the primary caregiver. She provides
completely valid reasons as to why her other siblings could not care for the
mother: her sister, who lived in the same house, was ailing from kidney disease
(and ultimately had a kidney transplant, per evidence on the record).
[56]
The Applicant was thus the primary caregiver for
her mother. The mother had a pacemaker put in during the period in question,
and was having serious cardiovascular issues, in addition to diabetes. The
mother could not take care of herself nor were there others to tend to her: the
medical evidence on the record, both with respect to the ailing sister and
mother, bore out the fact that both were very ill. This was all stated in a
letter from Ms. Dang’s M.D., Dr. Choy, none of which was mentioned in the
decision by the Board. The mother has since died.
[57]
Quite apart from all of the above, there were
the practical difficulties for the Appliant to leave work, which the Board
member also failed to address in his finding that the Applicant could have left
Canada to spend more time in Vietnam. The Applicant was clear that she needed
her job, which was only seasonal, and feared asking for extra time off. She
used the money to support herself and her family (including her mother and Mr.
Huynh). The Applicant was clear that she collected unemployment insurance in
the months she did not work: CTR at p 455. It is a commonly known fact that
one is not supposed to be travelling abroad while collecting unemployment
insurance. In any event, the Applicant testified that she did not have money,
and had to take care of her mother.
Money sent to
the husband
[58]
With respect to the money sent Mr. Huynh, the
Board member found that some of the $7,300 sent over the two years in question
(that she did not visit him), in addition to the money spent on their 700
person wedding, could have been directed instead to traveling to Vietnam.
[59]
There are several issues with this conclusion.
First, this ignores the fact that other than in 2010, the Applicant visited Mr Huynh
in Vietnam every year. Second, money sent in support of a husband can
certainly be one factor that shows support for a spouse. Third, there is
nothing to suggest that the wedding was an opulent affair. Fourth, the
mother-in-law testified that she covered the cost of the wedding. When asked “Did you put on a big wedding for your son and daughter-in-law”,
she answered “Yes. 60-70 tables”. This testimony
was not undermined or challenged in any way. There was simply no evidence that
the Applicant could therefore have redirected these wedding funds to instead go
to visit her husband, if they were not hers to begin with.
Informal attire at wedding
[60]
The Board notes “the very
informal attire, including flip flops, of some of the guests. This would seem to
be indicative of a wedding that was staged hastily and/or to provide a
photographic record for immigration purposes”.
[61]
I simply see no basis for this statement, either
in terms of logic, or in terms of testimony before the IAD or visa office.
Cultural norms of a wedding may well be different in Vietnam. There was no
evidence before the decision-maker about those norms, and I see no evidence
tendered or basis for the conclusion. Indeed, even in North America, or
elsewhere in the West, weddings are not always formal. Many choose to have
informal weddings, (beach weddings, and the like).
[62]
The photos of the wedding showed a mix of
formally and informally dressed guests. I see no basis to conclude that
because of some guests attending in flip flops, the wedding was consequently
staged for immigration purposes. Quite the opposite: one would imagine that if
it were a sham, the affair would have been far more modest in scope – certainly
not a wedding for 700 people. In addition, one would think far fewer guests
would have attended, and family and friends would not have travelled from North America, given that this is not a family of great means. And the Applicant herself
would not have spent over two months in Vietnam planning the wedding.
[63]
Surely there has to be more indicia than simply
one photo of some guests in informal attire, to deem a wedding banquet staged
for immigration purposes.
Prior marriage
[64]
The Board member found fault with knowledge of
the Applicant’s earlier divorce. First, he criticizes Mr. Huynh, who “did not know the reasons for the Appellant’s divorce”.
Next, he found that the Applicant’s friend, Jenny Chan, “did
not know of the Appellant’s prior marriage. This is further evidence of the
Appellant’s lack of candidness, which evidently extends to her close
friendships”.
[65]
I disagree with the Board that Mr. Huynh and Ms.
Chan’s lack of knowledge about the Applicant’s divorce is evidence of a lack of
credibility on her part. First the Applicant only knew Ms. Chan since 2007,
i.e., after the divorce. Second, it is not a given that people share details
about former marriages, whether to a subsequent spouse, or friend. People can
be, and often are, embarrassed or hurt about failed marriages, and want to move
on from the past and put those events behind them. Ms. Dang’s testimony
surrounding the prior marriage, and her feelings about it, were entirely
consistent with such feelings. Third, what might be common in the West, namely
to discuss failed marriages broadly (and I am not in a position to say whether
or not this occurs), may not be true of Southeast Asian culture.
Lack of
knowledge about Toronto
[66]
The Board found it problematic that Mr. Huynh
indicated at the interview that he did not know “anything
about Toronto, where he presumably intends to live”. Again, I do not
know what turns on this fact. Again, Mr. Huynh had a basic level of education
and is clearly an unsophisticated individual who has been waiting for five
years without any progress on his sponsorship and efforts to be reunited with
his spouse. Mr. Huynh will presumably better acquaint himself with Toronto if he receives positive news regarding his sponsorship.
Overlooking or
failing to mention evidence
[67]
The Board member criticized all manner of
evidence presented before the Officer and then the Board at the hearing.
However, he failed to address plenty of evidence that demonstrated a genuine
relationship, including the dozens of pages of phone logs, photographs (other
than the one photograph with flip flops) portraying time spent together in Vietnam, and cards exchanged.
[68]
The Board member makes statements such as the
wedding “allegedly” having 700 guests. DVDs were
presented to the Board along with photographs, which could have been viewed to
confirm the size of the wedding. This evidence, contradicting the findings of
the Board, were not referenced, or presumably, viewed.
[69]
In addition, there was compelling medical
evidence of the issues that the Applicant confronted, both personally and with
respect to her unwell mother and sister. This evidence, some of which is
mentioned above, from her M.D. Dr. Choy, underscored her testimony, but was not
addressed or even acknowledged by the Board. This evidence included the fact
that the Applicant suffered from depression, as well as “anxiety,
poor concentration, fatigue, palpitation and insomnia” as a result of
the situation, and that she is medicated with Lorazepam.
[70]
The Board member also failed to mention the
supportive testimony of those who appeared as witnesses such as the mother,
mother-in-law and Jenny Chan, which from a reading of the transcript, and
subsequent Affidavits (of Jenny Chan, for instance), were compelling. These
individuals attested to the bona fides of the relationship. Neither the
Applicant, nor her friend Jenny Chan, were cross examined on their Affidavits
dated July 8, 2013 and September 8, 2014, which also buttressed many of the
facts reviewed above.
[71]
This evidence was either in the written record,
or provided by way of live witnesses at the hearing (for instance, the Applicant’s
friend, mother, and mother-in-law, the latter of whom delayed surgery and
travelled from San Francisco to provide said evidence). It was also evident
that the Applicant was eager to proceed with the appeal before the IAD, because
when the Board asked for an adjournment, the Applicant opposed delay, due to
the surgery that the mother-in-law postponed on account of the hearing, who
stated at the hearing, “Mainly I want to ask that the
reunion of my son and my daughter-in-law. Mainly I have plan to have my
surgery for my eyes but I had to come here to testify for them”.
[72]
The Board cannot overlook key evidence that
contradicts its findings without addressing this contradictory evidence: Cepeda-Gutierrez
v MCI, [1998] FCJ No 1425.
[73]
Finally, it should also be noted, in closing,
that much of this evidence was summarized for the Board in a submission that
accompanied the Divorce certificate that counsel for the Applicant had
undertaken to obtain for the Board at the hearing. The Board chose not to
address any of counsel’s positions in these submissions, either.
[74]
In short, on the second issue of reasonableness
with respect to credibility and conclusions drawn, I find that the Board, and
previously the Officer, both cherry picked weaknesses in the Applicant’s testimony
which simply does not hold water when one considers all the circumstances,
including the education, sophistication, and cultural backdrop.
[75]
Furthermore, the Board failed to address
positive elements in the case that further undermined those findings. It is
trite law that the Board is in the best position to adjudicate credibility.
However, when each of the credibility findings has weaknesses, and any apparent
inconsistencies can be adequately explained, it is equally as problematic to
base a negative decision on those credibility findings in determining that a
marriage was entered into for immigration purposes.
C.
Issue 3: Was the Applicant denied procedural
fairness?
[76]
Finally, the Applicant alleges that the Officer
denied her procedural fairness by consulting with outside sources regarding
driver’s licenses and using the information obtained to cast doubt on Mr.
Huynh’s credibility, without giving him notice of the information or an
opportunity to respond to it. Given the reasons provided above, I do not feel
it necessary to address this point. Should the Applicant feel the need to
address the driver’s license issue further at the new hearing, which again will
be a de novo hearing, she will be able to do so at that time.
VIII.
Conclusion
[77]
In conclusion, I find the panel’s findings to be
unreasonable and therefore allow this application. The appeal should be
reheard by a differently constituted panel as soon as practicable. The
Applicant seeks that the appeal date is set within 30 days of this Judgment. I
think it reasonable that the appeal date is set within 60 days of the Judgment,
given all the circumstances, including that according to the medical evidence
on file, the Applicant is awaiting surgery for tumours, and for this and other
reasons, understandably wishes to have this matter dealt with expeditiously.
[78]
Counsel did not raise any questions for
certification and none arose.
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