Date: 19980820
Docket: IMM-724-98
BETWEEN:
HING NYAP TONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Wednesday, August 19, 1998)
STRAYER, J.:
[1] The issues raised by the applicant essentially involve alleged errors of fact by the Immigration and Refugee Board (Appeal Division) (hereafter "Board").
[2] The first category of alleged error is that the Board ignored the evidence of three witnesses: Messrs. Ing, Leung, and Johnson. This allegation is based on the fact that there is no specific reference in the decision to evidence given by these witnesses in support of the genuineness of the marriage relationship between Mr. and Ms. Hing. It might have been better if the Board had mentioned, if only to dismiss, this evidence, to avoid the kind of attack now being made on its decision. It is well settled, however, that neither a board nor a court is obliged to refer to every piece of evidence in its decision. When the evidence is, because of its content or weight, central to a party`s case, then an inference may, in appropriate cases, be drawn that if not mentioned in the judgment that evidence has been ignored. But the evidence of these three witnesses was not in any way central to the applicant`s case. As the Board properly noted, the key issue was the intention of Ms. Hing in entering into the marriage. These witnesses could at best only give impressions of that intention. It is clear none of them knew her well or spent much time with her, nor were they close friends of her husband. The content of their evidence was very limited and the Board could well have regarded its weight as minimal. It was therefore not reviewable error that the Board made no specific reference to that evidence in its decision.
[3] The second category of alleged error concerns the findings of the Board that evidence of Ms. Hing, and in certain aspects that of her husband, was not credible. Findings of credibility are very difficult for a reviewing court to question unless they clearly are inconsistent with the documentary record including the transcript of oral evidence. In its decision the Board undertook to detail inconsistencies in the oral evidence and before me the applicant sought to demonstrate that the Board`s findings did not accord with the transcript. Upon review of the relevant evidence I am not satisfied that the Board misstated the evidence except perhaps in one aspect: that concerning the exchange of gifts, where I think a careful reading of the transcript does not demonstrate any significant contradiction in the evidence of this couple. This is however a minor and tangential matter which would not justify judicial interference. I would also question the negative attitude of the Board as to Ms. Hing`s daughter being absent from the wedding reception, but again this is tangential and not a reviewable error. These matters were indeed all incidental to the substantial objective evidence the Board had before it as to the conduct of the couple since the wedding which it could compare to their testimony as to their subjective intentions.
[4] On the whole then, I am satisfied that the Board had good reason on the basis of the recorded evidence to make a negative finding of credibility. Apart from this the Board observed that Ms. Hing testified `with a manner that was neither frank nor forthright`. This is clearly a matter which the Board, and not the Court, is best able to assess.
[5] The application for judicial review will therefore be dismissed.
"B.L. Strayer"
Judge
Toronto, Ontario
August 20, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-724-98
| STYLE OF CAUSE: HING NYAP TONG |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: WEDNESDAY, AUGUST 19, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: STRAYER, J.
DATED: WEDNESDAY, AUGUST 19, 1998
APPEARANCES:
Mr. Mangesh S. Duggal
For the Applicant
Ms. Toby Hoffman
For the Respondent
| SOLICITORS OF RECORD: Mangesh S. Duggal |
1604-372 Bay Street
Toronto, Ontario
M5H 2W9
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980820
Docket: IMM-724-98
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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