Docket: IMM-5781-15
Citation:
2016 FC 1207
Ottawa, Ontario, October 31, 2016
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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SAMUEL VAN
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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JUDGMENT AND REASONS
I.
Overview
[1]
The applicant Mr. Samuel Van Nguyen wished to
sponsor his wife, Mrs. Doan T. Truong Nguyen, a citizen of Vietnam, for
permanent residence in Canada. An immigration officer from the High Commission
of Canada in Singapore dismissed Mr. Nguyen’s application on the grounds that
the marriage is not genuine and that the couple has entered into their
relationship primarily for the purpose of obtaining status under the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. Therefore, Mrs. Truong Nguyen
could not be considered a spouse and sponsored in the family class under
subsection 4(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations].
[2]
Mr. Nguyen appealed the officer’s decision to
the Immigration Appeal Division [IAD] of the Immigration and Refugee Board of
Canada. In December 2015, the IAD dismissed Mr. Nguyen’s appeal, agreeing with
the officer’s conclusion that the marriage was motivated primarily by a desire
to obtain an immigration advantage.
[3]
Mr. Nguyen has applied to this Court for
judicial review of the IAD’s decision. He argues that the decision is
unreasonable because it failed to assess the evidence on the genuineness of his
marriage, misconstrued the facts and evidence presented, and erroneously took
into consideration his previous marriage. Mr. Nguyen also contends that the
IAD’s reasons are inadequate since they do not sufficiently explain how the
tribunal reached its conclusion. Mr. Nguyen asks this Court to quash the
decision and to send it back to the IAD for redetermination by a different
panel.
[4]
Mr. Nguyen’s application raises two issues: 1)
was the IAD’s decision unreasonable; 2) were the IAD’s reasons inadequate.
[5]
Having considered the evidence before the IAD
and the applicable law, I can find no basis for overturning the decision. The
IAD’s decision was responsive to the evidence and the outcome is defensible
based on the facts and the law. It falls within the range of possible,
acceptable outcomes. I also find that the reasons for
the decision adequately explain how the IAD concluded that Mr. Nguyen’s
marriage to Mrs. Truong Nguyen is not genuine and was entered into primarily
for the purpose of obtaining immigration status in Canada. I must therefore dismiss Mr. Nguyen’s application for judicial review.
II.
Background
A.
The IAD’s Decision
[6]
The IAD’s decision is brief, totalling 15
paragraphs spread over three pages.
[7] The
IAD did not find Mr. Nguyen and Mrs. Truong Nguyen to be credible and
trustworthy witnesses. The panel determined that Mr. Nguyen did not provide
proof of the genuineness and evolution of his relationship with Mrs. Truong
Nguyen. Additionally, the respective testimonies of the two spouses unveiled
many discrepancies, in particular with regard to the date of the marriage
proposal and their knowledge of each other’s prior marital status.
[8] The
IAD also observed that, not only was Mr. Nguyen having his initial meeting with
Mrs. Truong Nguyen in Vietnam at the same time as his first wife was entering Canada
as a permanent resident, but he further never lived with his first wife. Also
damaging to Mr. Nguyen’s case was that he could not remember his first wife’s
name during oral testimony. The IAD therefore concluded that his first marriage
was one of convenience and that it was entered into primarily for the purpose
that his then wife obtaining permanent resident status.
[9] A
witness, who allegedly knew Mr. Nguyen for 25 years, testified about the
genuineness of Mr. Nguyen’s relationship with Mrs. Truong Nguyen. However, the
IAD gave little weight to this testimony, as the witness did not even know
about Mr. Nguyen’s first marriage.
[10]
The IAD acknowledged that the couple has a
child. The panel noted that the existence of a child creates a presumption of
genuineness, but determined that this presumption was rebutted in this case and
outweighed by the credibility concerns. The IAD further explained that Mr.
Nguyen had not “travelled to Vietnam to see his son
since his first birthday in 2013” and that there was “very little evidence of financial support” prior to
the birth of his child.
B.
The Standard of Review
[11]
This Court has consistently held that decisions
of the IAD, as an expert tribunal, are to be assessed on the reasonableness
standard and owed deference (Burton v Canada (Citizenship and Immigration),
2016 FC 345 [Burton] at para 13; MacDonald v Canada (Minister of
Citizenship and Immigration), 2012 FC 978 at para 16). More specifically,
whether a marriage is entered into for the primary purpose of immigration is a
question of mixed facts and law and a highly factual determination, subject to
review on a reasonableness standard (Burton at para 15;
Bercasio v Canada (Citizenship and Immigration), 2016 FC 244 [Bercasio]
at para 17; Aburime v Canada (Minister of Citizenship and
Immigration), 2015 FC 194 [Aburime] at para 19; Gill v Canada
(Minister of Citizenship and Immigration), 2012 FC 1522 [Gill] at
para 17).
[12]
As to the issue of adequacy of reasons, it is no
longer a stand-alone ground for judicial review and is also to be reviewed
under a reasonableness standard (Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at paras 14-16; Canada (Citizenship and Immigration) v Gabor,
2015 FC 168 at paras 16-19).
[13]
When reviewing a decision
on the standard of reasonableness, the analysis is concerned “with the existence of justification,
transparency and intelligibility within the decision-making process”, and the IAD’s findings should not be
disturbed as long as the decision “falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]
at para 47). In conducting a reasonableness review of factual findings, it is
not the role of the Court to reweigh the evidence or the relative importance
given by the decision-maker to any relevant factor (Kanthasamy v Canada
(Minister of Citizenship and Immigration), 2014 FCA 113 at para 99). Under
a reasonableness standard, as long as the process and the outcome fit comfortably
with the principles of justification, transparency and intelligibility, and the
decision is supported by acceptable evidence that can be justified in fact and
in law, a reviewing court should not substitute its own view of a preferable
outcome (Newfoundland Nurses at para 17).
III.
Analysis
A.
Was the IAD’s Decision Unreasonable?
[14]
Mr. Nguyen claims that the IAD’s decision was
unreasonable because it failed to assess all of the
evidence on the genuineness of his marriage, misconstrued the facts and
evidence before it, and erroneously took into consideration his previous
marriage to his first wife, a Chinese national.
(1)
Subsection 4(1) is a disjunctive test
[15]
I premise my analysis with the following
comment. Mr. Nguyen appears to suggest that, since paragraph 4(1)(b) of the
Regulations uses the present tense when requiring that the marriage be genuine,
proving the genuineness of his relationship today would be enough to meet the
test under subsection 4(1). This is not the case. In Gill, Chief Justice
Crampton summarized as follows the approach in assessing marriages pursuant to
subsection 4(1):
[29] […] A plain reading of section 4
of the Regulations reflects that these are two distinct tests. If a finding
that a marriage is genuine precluded the possibility of a finding that the
marriage was entered into primarily for the purpose of acquiring any status or
privilege under the IRPA, the latter test would be superfluous. This would
offend the presumption against statutory surplusage. (R v Proulx, 2000
SCC 5, at para 28, [2000] 1 S.C.R. 61).
[16]
There are two distinct tests under paragraphs
4(1)(a) and (b) of the Regulations, and either test can dispose of an
application. Finding that a marriage is genuine does not negate the requirement
that the marriage must not have been entered into primarily for the purpose of
acquiring a status. In order to be considered a spouse, the marriage needs to
be genuine and the relationship must not have been entered into
primarily for immigration purposes (Burton at para 28; Khan v Canada
(Minister of citizenship and Immigration), 2015 FC 320 [Khan] at
para 16; Gill at paras 29-30). Subsection 4(1) makes it clear that “[e]ither finding precludes the spouse from obtaining the
necessary visa to live with her husband in Canada” (Khan at para
16; Singh v Canada (Citizenship and Immigration), 2014 FC 1077 at para 5).
(2)
The IAD reasonably assessed the evidence
[17]
Mr. Nguyen submits that, in the present case,
the IAD did not take into consideration all of his circumstances nor the
various positive factors and evidence in support of his relationship with Mrs.
Truong Nguyen. He referred more specifically to their shared country of origin
and language, their Vietnamese cultural, ethnic and religious commonality and compatibility,
their child, phone bills showing communications, a life insurance policy, proof
of financial support, and his trips back to Vietnam since 2009. Mr. Nguyen further
pleads that inconsistencies in testimonies do not prove an absence of a bona
fide marital relationship and that “inconsistencies
[…] would represent a thin foundation for rejecting all of the other evidence
favouring the genuineness of [a] marriage” (Sandhu v Canada
(Citizenship and Immigration), 2015 FC 1303 [Sandhu] at para 6). Mr.
Nguyen thus submits that the IAD erred in ignoring “significant
evidence of a positive, genuine relationship by unduly focusing on minor
inconsistencies” (Amayeanvbo v Canada (Citizenship and Immigration),
2011 FC 621 at para 45).
[18]
I do not agree with Mr. Nguyen’s submissions.
[19]
The IAD assessed all the evidence, and dismissed
Mr. Nguyen’s appeal for several reasons. These included the facts that Mr.
Nguyen did not provide evidence as to how his relationship with Mrs. Truong
Nguyen evolved before they met in person; that he previously sponsored someone
else as his wife but could not remember her name during the oral hearing; that
his first wife arrived in Canada when Mr. Nguyen was meeting Mrs. Truong Nguyen
for the first time in Vietnam; that Mr. Nguyen claimed that he did not know his
first wife’s plan to come to Canada; that there were discrepancies between the
testimonies of Mr. Nguyen and Mrs. Truong Nguyen regarding the knowledge of Mr.
Nguyen’s first marriage and the proposal date; and that the close friend who
acted as a witness did not have knowledge of Mr. Nguyen’s first marriage. In
addition, the IAD correctly pointed out that, even though the presence of a
child creates a presumption that a relationship is genuine, that presumption
can be rebutted. This is what happened here, as the IAD voiced many credibility
concerns.
[20]
I pause to observe that this is not a case where
the adverse credibility findings made by the IAD are not supported by the
evidence on the record. Mr. Nguyen indeed acknowledged many of the deficiencies
and contradictions. This situation is therefore quite different from the Sandhu
and Saroya v Canada (Citizenship and Immigration), 2016 FC 414 cases cited
by Mr. Nguyen.
[21]
This Court owes deference to the IAD on issues
of credibility. This applies even more so in a case like this, where people
seeking to deceive the immigration authorities would want to make their
marriage look genuine. As recently indicated by the Court, “assessing the genuineness of a marriage is a challenging
task at the best of times”,
in a context where people “who are intent on
committing a form of deceit to gain the highly valuable status of Canadian
permanent residence will conduct themselves to make the relationship look
outwardly genuine, when it is not” (Bercasio
at para 23).
[22]
I am mindful of the fact that, as pointed out by
counsel for Mr. Nguyen, the IAD should not turn its review into a memory test (Shabab v Canada (Citizenship and
Immigration), 2016 FC 872
at para 39). However, singling out conflicting and incoherent evidence and
questioning an applicant on it, as the IAD did here, does not amount to that.
[23]
Contrary to Mr. Nguyen’s submissions, this is
also not a situation where “the evidence omitted from
any discussion in the reasons appears squarely to contradict the agency's
finding of fact” (Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL) [Cepeda-Gutierrez]
at para 17). It is well recognized that a
decision-maker is presumed to have weighed and considered all the evidence
presented to it unless the contrary is shown (Florea v Canada (Minister of
Employment and Immigration), [1993] FCJ no 598 (FCA) at para 1). A failure to mention a particular piece of
evidence does not mean that it was ignored (Newfoundland Nurses at para 16). It is only when a tribunal is silent on evidence
clearly pointing to an opposite conclusion that the Court may intervene and
infer that the tribunal overlooked the contradictory evidence when making its
finding of fact (Ozdemir v Canada (Minister of Citizenship and Immigration),
2001 FCA 331 at paras 9-10; Cepeda-Gutierrez at paras 16-17). This is
not the case here.
[24]
Assessing the genuineness of a marriage is a
highly factual determination at the heart of the IAD’s expertise and functions.
Even though the Court might have evaluated the evidence differently, it should not
intervene if a decision is justifiable,
transparent and intelligible and falls within the confines of possible,
acceptable outcomes. I find that this is clearly the case for the IAD’s
decision.
(3)
The IAD did not misconstrue facts
[25]
Mr. Nguyen further submits that the IAD erred
when it indicated that he had not “travelled to Vietnam
to see his son since his first birthday in 2013 even though he made more
regular visits prior to his birth”, and when it determined that “very little evidence of financial support” was
provided for the period prior to the birth of their child. Mr. Nguyen claims
that these findings of fact are not accurate, as he provided proof that he
visited his son in January 2014 and that he financially supported his spouse
and her son from a previous marriage prior to the birth of his biological son,
through 17 money transfers totalling $6,600.
[26]
I am not persuaded that these excerpts amount to
a misconstruction of facts justifying the intervention of this Court. In fact, Mr.
Nguyen’s arguments instead reflect a narrow reading of two passages in the
IAD’s decision, divorced from the overall context of the panel’s analysis.
[27]
I acknowledge that the last time Mr. Nguyen
effectively travelled to Vietnam was in early 2014. However, what the IAD said was
that Mr. Nguyen had not travelled since his son’s first birthday, which
occurred in December 2013. The central fact here is that Mr. Nguyen had not, at
the time of the IAD’s hearing, seen his son since his first birthday. While the
words chosen by the IAD may not be as clear as they could have been, it is
obvious that the panel was aware of Mr. Nguyen’s visit in January 2014. I find
no material error in the statement picked out by Mr. Nguyen, sufficient to
render the IAD’s decision unreasonable. Regarding the
financial support, I observe that from the birth of his son up to October 2015
(a period of a little less than three years), Mr. Nguyen sent approximately
$18,700 to his wife. It was thus open to the IAD, and certainly within the
sphere of reasonableness, to qualify as “very little
evidence of financial support” what was provided by Mr. Nguyen prior to
his son’s birth (i.e., $6,600), given that the amount sent to Mrs. Truong
Nguyen tripled after his son’s birth.
(4)
The IAD rightly considered Mr. Nguyen’s first
marriage
[28]
Mr. Nguyen then argues that the IAD focused on
irrelevant considerations when it referred to his previous marriage with his
first wife, and unreasonably drew a negative credibility inference from it with
respect to the genuineness of his present marriage.
[29]
I am of the view that Mr. Nguyen’s claim in this
respect is ill-founded. As acknowledged by counsel for Mr. Nguyen at the
hearing before this Court, an applicant’s immigration history and past
sponsorship are relevant to a decision by the IAD under subsection 4(1). It is in
fact recognized that immigration history can be assessed in determining if a
marriage meets the requirements of the Regulations (Aburime at para 23; Enright
v Canada (Citizenship and Immigration), 2013 FC 209 at para 45). The IAD can
indeed consider a large number of factors in determining the genuineness of a
marriage (Ouk v Canada (Citizenship and Immigration), 2007 FC 891 at para 13;
Khera v Canada (Citizenship and Immigration), 2007 FC 632 at para 10). It was
thus reasonable for the IAD to factor this prior marriage of convenience in its
analysis.
[30]
Mr. Nguyen complains that this finding clouded
the IAD’s approach to the rest of the evidence and unduly tainted its analysis.
I disagree. The IAD could certainly not ignore this element given its direct
relevance to Mr. Nguyen’s application for spousal sponsorship, and nowhere do I
see in the IAD’s reasons any indication that the panel blinded itself to the
evidence before it because of Mr. Nguyen’s first marriage.
(5)
Conclusion on reasonableness
[31]
In essence, Mr. Nguyen is inviting the Court to
reweigh the evidence that he has presented before the IAD. In conducting a
reasonableness review of factual findings, it is not the role of the Court to
do so or to reassess the relative importance given by the decision-maker to any
relevant factor or piece of evidence. If the findings provide sufficient
justification and rationality in light of the totality of the evidence before
the decision-maker, a reviewing court should not substitute its own view of a
preferable outcome.
[32]
True, the IAD’s reasons could perhaps have been
more explicit and articulate, and more precisely worded. But I am not persuaded
that the decision reaches the level of unreasonableness or lacks intelligibility.
The test this Court has to apply is not whether the decision satisfies the
expectations of Mr. Nguyen; the test is the reasonableness of the decision.
[33]
Reasons are to be read
as a whole, in conjunction with the record (Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53; Construction Labour Relations
v Driver Iron Inc, 2012 SCC 65 at para 3). A
judicial review is not a “line-by-line treasure hunt
for error” (Communications,
Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper,
Ltd, 2013 SCC 34 at para 54). The Court should instead approach the reasons
with a view to “understanding,
not to puzzling over every possible inconsistency, ambiguity or infelicity of
expression” (Ragupathy v Canada (Minister of Citizenship
and Immigration), 2006 FCA 151 at para 15). When
read as a whole, the IAD’s decision is reasonable and does not fall outside the
realm of acceptable, possible outcomes. The IAD properly assessed all the
necessary factors and provided an analysis of the evidence presented. The
intervention of this Court is not warranted.
B.
Were the IAD’s Reasons Inadequate?
[34]
Mr. Nguyen also submits that the IAD’s decision,
which is only three pages long with an actual analysis of merely seven
paragraphs, is simplistic and demonstrates insufficient consideration of key
evidence. He relies on the Court’s decision in Javed, where it was
stated that “[t]he failure to provide meaningful or
adequate reasons for the decision is a breach of the duty of procedural fairness”
(Javed v Canada (Minister of Citizenship and Immigration), 2004 FC 1458
at para 22).
[35]
This, in my view, is an inaccurate statement of
the law on adequacy of reasons.
[36]
Sufficiency of reasons is not measured by the pound.
No matter the number of words used by a decision-maker or how concise a
decision may be, the test is whether the reasons are clear and intelligible and
explain to the Court and the parties why the decision was reached. Reasons are
sufficient if they “allow the reviewing court to understand
why the tribunal made its decision and permit it to determine whether the
conclusion is within the range of acceptable outcomes” (Newfoundland
Nurses at para 16). In order to provide adequate reasons, “the decision maker must set out its findings of fact and the
principal evidence upon which those findings were based”, as well as “address the major point in issue” and “reflect consideration of the main relevant factors” (VIA
Rail Canada Inc v National Transportation Agency, [2001] 2 FCR 25 at para
22). This is exactly what the IAD did.
[37]
As I explained in Canada (Minister of
Citizenship and Immigration) v Abdulghafoor, 2015 FC 1020 at paras 30-36
and Al-Katanani v Canada (Citizenship and Immigration), 2016 FC 1053 [Al-Katanani]
at para 32, the law relating to the sufficiency of
reasons in administrative decision-making has evolved substantially since Dunsmuir.
In Newfoundland Nurses, the Supreme Court
provided guidance on how to approach situations where decision-makers provide
brief or limited reasons. Reasons need not be fulsome
or perfect, and need not address all of the evidence or arguments put forward
by a party or in the record (Newfoundland Nurses at paras 16 and 18). Reasonableness, not perfection, is the
standard. Even where the reasons for the decision are
brief, or poorly written, the Court should defer to the decision-maker’s
weighing of the evidence, as long as it is able to understand why the decision
was made (Al-Katanani at para 32).
[38]
Reasons do not need to be lengthy either. Even a
sentence or two can be enough to provide adequate reasons (Vancouver
International Airport Authority v Public Service Alliance of Canada, 2010
FCA 158 at para 25). Short as they may be, reasons will be sufficient if they “allow the reviewing court to assess the validity of the
decision” (Lake v Canada (Minister of Justice), 2008 SCC 23 at
para 46).
[39]
The IAD’s reasons enable me to understand how
the panel reached its conclusion as they explain why Mr. Nguyen and Mrs. Truong
Nguyen do not meet the requirements of subsection 4(1) of the Regulations, and
there is factual foundation for reaching this conclusion. There is no
inadequacy of reasons here.
IV.
Conclusion
[40]
The IAD’s refusal of Mr. Nguyen’s appeal on the
ground that his marriage is not genuine and that the couple has entered into
their relationship primarily for the purpose of obtaining immigration status represents
a reasonable outcome based on the law and the evidence before the panel. On a
standard of reasonableness, it suffices if the decision subject to judicial review
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law. This is the case here. In addition, the IAD
provided adequate reasons. Therefore, I must dismiss Mr. Nguyen’s application
for judicial review.
[41]
Neither party has proposed a question of general
importance for me to certify. I agree there is none.
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