Date: 20010306
Docket: IMM-424-00
Neutral reference: 2001 FCT 144
BETWEEN:
PHUNG SAM BUI
Plaintiff
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
LEMIEUX J.
A. INTRODUCTION
[1] By this application for judicial review Pung Sam Bui (hereinafter "the plaintiff"), a permanent resident of Canada since April 24, 1993, is asking the Court to quash a decision by the Refugee Division of the Immigration and Refugee Board (hereinafter "the tribunal") on January 10, 2000 which dismissed for want of jurisdiction the appeal filed by him under s. 77 of the Immigration Act (hereinafter "the Act") from the refusal by Nipha Kietniyom of the Canadian Consulate in Bangkok on December 30, 1998 (hereinafter "the immigration officer") to approve the sponsored application for landing of his spouse.
B. FACTS
[2] On January 4, 1997, on a trip to Vietnam, his country of origin, the plaintiff met Pham Thi My Duyen, who was then 21 years old. On January 27, 1997 they were married by traditional Vietnamese rites. On February 12, 1997 the plaintiff returned to Canada to continue his work.
[3] The plaintiff subsequently visited his spouse in Vietnam from June 20 to August 11, 1997. On September 15, 1997 he filed an application for sponsorship of a member of the family class for his wife.
[4] The latter was summoned to Ho Chi Minh City, Vietnam, for an interview with the immigration officer, which took place on December 10, 1998.
[5] The plaintiff visited his spouse in Vietnam from December 12 to February 26, 1999 [sic] and their son was conceived during that time. His spouse gave birth on September 29, 1999.
[6] By a letter dated December 30, 1998 the spouse learned that her sponsorship application had been denied. The immigration officer stated the following reasons:
After a thorough review of the documents that you submitted in support of your application and the information that you provided at interview, I have determined that you have married primarily for the purpose of immigrating to Canada and not with the intention of residing permanently with your sponsor.
You stated on the questionnaire form that you were introduced to your sponsor by his sister. On the contrary, you told me at the interview that you met him when he came to your barber shop.
You said that you never knew your sponsor before you met him on 4 January 1997 when he came to your barber shop. You claimed that even though you did not go out much because you were busy working, you decided to marry him a few days later for the simple reason that you liked the way he talked.
During the interview, I asked when he proposed for marriage, you stopped to think but you still could not remember the date. You also did not remember the date of his departure after you were married.
Your sponsor claimed that forty calls were made within four months but only four calls were made to you as shown on the telephone bills. You stated on the questionnaire form that you often communicated by letters and telephones but there were only five letters (four written in 1997 and one in 1998). The telephone bills presented were not in the sponsor's name nor his mother's with whom he is residing. You claimed that telephone number belonged to the sponsor's brother. Yet since this brother has moved out, telephone bills were still not in the sponsor's name nor in his mother's.
You also stated on the questionnaire form that you went outing [sic] together but you did not have sufficient supporting photos as proof either before or after the marriage. Although you presented some wedding pictures, there were too few of them to show that the real marriage ceremony took place. You provided me with a contradictory story. I am not convinced there is a bona fide relationship between you and your sponsor. [My emphasis.]
[7] This decision was communicated to the plaintiff by a letter dated February 4, 1999 in which the immigration officer informed him of his right of appeal pursuant to s. 77(3) of the Act.
[8] The plaintiff appealed to the tribunal. The tribunal upheld the immigration officer's decision and relied upon the following conclusions:
[TRANSLATION]
On January 4, 1997, on a trip to Vietnam, his country of origin, the plaintiff went to a hair care salon accompanied by his sister. That is where he met the applicant, who was working there as a hairdresser.
On January 9 the appellant again met the applicant and the following day asked his sister to make the necessary contacts with the applicant's grandmother so he could marry the applicant.
On January 27 the marriage was celebrated by traditional Vietnamese rites when the appellant went to the applicant's home for the "welcome" ceremony and the ceremony before the ancestral altar, and the procession then went to the home of the appellant's "big brother" where a celebration took place in the company of some 200 persons.
On February 12, 1997 the appellant returned to Canada. Since that time he has been back to visit his spouse in Vietnam, in June 1997 and December 1998.
A son, Bui Duy Tan, was born of this union on September 28, 1999 and the plaintiff planned to return to see his family at Christmas 1999.
. . . . .
When cross-examined by counsel for the Minister the appellant altered his version of the facts somewhat.
Accordingly, he said that it was not on January 10 but on January 5, 1997, the day after his arrival, that he asked his elder sister to take steps to obtain the applicant's hand in marriage, and it was on January 9 that his elder sister went to the applicant's adoptive grandmother's home to investigate the possibilities of a marriage.
Further, it was on the same evening of his arrival in Vietnam, January 4, 1997, after he met the applicant at her hairdressing salon, that the appellant went to the home of the applicant's grandmother, where he said he got to know her better for two hours (conversation), not on January 9, as he stated earlier in his testimony.
. . . . .
At her interview with the visa officer on December 10, 1998 the applicant made no mention of the presence of the appellant's elder sister on January 4, 1997 or of his conversation with her grandmother for two hours that same evening, still less of the appellant's elder sister being involved in the marriage proposal. The applicant only stated that she met the appellant on January 4 at the barber shop which she owned, did not go out with him because she had to work and stated that it was he, the appellant, who proposed marriage on January 7, while the appellant's mother intervened to "arrange" the marriage.
The appellant's testimony about the marriage itself was extremely involved. First, he said he estimated the number of guests at some 200 people and stated that over 200 photographs were taken as well as some videos. Then, the number of guests was altered from 200 to 100, then a number between 100 and 200, 100 to 110 persons, and finally to about 150 guests. The applicant stated that the marriage itself (formal marriage) took place at her home whereas the appellant said the marriage occurred at his big brother's home and the welcome ceremony and ceremony before the ancestral altar took place at the applicant's home.
Curiously, in a letter she sent to the Canadian High Commission on December 21, 1998, that is after her interview with the visa officer, the applicant stated that she was introduced to the appellant by his sister and that the ceremony of their marriage was celebrated at her husband's home in the presence of 70 people.
It is clear to the tribunal that this post-interview letter is an attempt to correct the applicant's prior statements so as to make them more consistent with those of the appellant contained in and/or accompanying her sponsorship proceedings.
Finally, the documentary evidence submitted by the appellant at the hearing of her appeal did not correct the discrepancies of that submitted to the visa officer. Certain letters which were given or sent to her had no dates, certain envelopes were empty and one letter was dated 1989 although the relationship between the appellant and the applicant had only existed since January 1997.
For all practical purposes the letters filed by the appellant contain a welter of accusations and recriminations against the appellant by the applicant.
Letter A-2 was dated July 5, 1998 and sent to the appellant by the applicant. The evidence was that the appellant was in Vietnam from July 2 to August 11, 1998. The appellant did not even try to explain this coincidence which was to say the least improbable, if not unreasonable.
As to the wedding photos, those filed with the visa officer were not able to persuade her that the marriage was valid. The same is true of the photos submitted by the appellant at the hearing of the appeal. [My emphasis.]
The telephone bills filed by the appellant did not show any connection between the owner of the telephone number (514) 272-7107 and the appellant, who on September 15, 1997 stated that his telephone number was (514) 270-8157 at home and (514) 495-3546 at work.
The appellant had the burden of showing that the applicant was not a person covered by s. 4(3) of the Regulations. Not only did he not explain on a balance of probabilities the contradictions and/or discrepancies mentioned by the visa officer, but his version of the facts only helped to create greater confusion and more contradictions.
When we compare the version of the facts the applicant gave to the visa officer on December 10, 1998 and the letter she sent to the Canadian High Commission on December 21, 1998, she contradicted herself. The appellant, without giving any reason or explanation for these contradictions and/or discrepancies, contradicted himself from time to time and also rebutted the applicant's first version of the facts.
It is clear to the tribunal that both the applicant and the appellant tried to deceive the visa officer and that the appellant has attempted to mislead it (the tribunal). Neither one is credible or trustworthy.
The tribunal cannot conclude on the basis of the evidence that the applicant intended to remain permanently with her spouse.
The appeal is dismissed for want of jurisdiction. [My emphasis.]
[9] The plaintiff is applying for judicial review of this decision.
C. LEGISLATION
[10] The relevant provisions are the following. Section 77 of the Act reads in part as follows:
| 77. (1) Where a person has sponsored an application for landing made by a member of the family class, an immigration officer or a visa officer, as the case may be, may refuse to approve the application on the grounds that
(a) the person who sponsored the application does not meet the requirements of the regulations respecting persons who sponsor applications for landing, or
(b) the member of the family class does not meet the requirements of this Act or the regulations,
and the person who sponsored the application shall be informed of the reasons for the refusal.
. . . . .
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77. (1) L'agent d'immigration ou l'agent des visas, selon le cas, peut rejeter une demande parrainée d'établissement présentée par un parent pour l'un ou l'autre des motifs suivants - dont doit être alors informé le répondant :
a) le répondant ne remplit pas les conditions fixées par les règlements;
b) le parent ne remplit pas les conditions fixées par la présente loi et ses règlements.
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| . . . . .77. (3) Appeals by sponsors
(3) Subject to subsections (3.01) and (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
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77. (3) Appel interjeté par un répondant
(3) S'il est citoyen canadien ou résident permanent, le répondant peut, sous réserve des paragraphes (3.01) et (3.1), en appeler devant la section d'appel en invoquant les moyens suivants :
a) question de droit, de fait ou mixte;
b) raisons d'ordre humanitaire justifiant l'octroi d'une mesure spéciale. [je souligne]
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[11] Section 4(3) of the Immigration Regulations, 1978 (hereinafter "the Regulations") reads as follows:
| (3) The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.
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(3) La catégorie des parents ne comprend pas le conjoint qui s'est marié principalement dans le but d'obtenir l'admission au Canada à titre de parent et non dans l'intention de vivre en permanence avec son conjoint.
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D. GROUNDS FOR REVERSAL PUT FORWARD BY PLAINTIFF
[12] The plaintiff argued that the tribunal misunderstood the burden which he had to meet by requiring him to present opposing evidence. On this first point, the plaintiff argued that the Act does not require opposing evidence to be presented. In fact, the Act only provides that an appeal may be allowed on a question of law or fact or mixed law and fact, and that if the appeal is allowed the Minister shall cause the review of the application to be resumed by an immigration officer who will determine whether the person who sponsored the application and the member of the family class meet the requirements of the Act. The plaintiff argued that by requiring him to present evidence that the applicant was not covered by s. 4(3) of the Regulations, the tribunal placed upon him a greater burden than that specified in the Act. The fact that his spouse was not present before the tribunal placed him in an impossible position as he could not answer the tribunal's questions about the way the interview between the officer and his spouse took place at Ho Chi Minh City.
[13] Secondly, he argued that there was a lack of procedural fairness in the tribunal's conclusion that the photos submitted at the hearing of the appeal did not convincingly establish a marriage in good faith.
[14] The plaintiff maintained that these objections by the tribunal were unfair since at the hearing he himself offered to give the tribunal additional photos and a video showing that a marriage ceremony took place on January 27, 1997, but the tribunal refused to accept this additional evidence.
[15] The plaintiff further argued that the tribunal misinterpreted the evidence on a major point detrimental to his credibility. He referred to the fact that the tribunal concluded that he had not tried to explain certain contradictions regarding a trip to Vietnam which allegedly took place in July 1998.
[16] The plaintiff stated that the tribunal was mistaken. He testified himself that he visited Vietnam between July 2, 1997 and August 11, 1997, not July 2 and August 11, 1998. The immigration officer came to the same conclusion after examining his airline tickets. Further, the tribunal asked several questions about this dealing with a statement by his spouse, who had mentioned a second visit between July 2 and August 11, 1998. When this was put to him by the presiding member of the tribunal, who said that [TRANSLATION] "this might be an error in the year, if I understand correctly", the plaintiff replied that [TRANSLATION] "Sometimes when she [his spouse] is nervous she can make mistakes".
[17] Finally, the plaintiff maintained that the tribunal refused to exercise its jurisdiction when it decided that it could not undertake consideration of the second part of s. 77(3), that is take humanitarian considerations into account, if it came to the conclusion that the plaintiff and his spouse came within s. 4(3) of the Regulations.
[18] The plaintiff supported this allegation by reference to the fact that his counsel asked the tribunal to allow the appeal in law and in equity and the transcript disclosed the following comment by the tribunal:
[TRANSLATION]
A. You know, counsel, that I can only allow it in law since if I find that they are not husband and wife I have no jurisdiction in equity.
- The question is that there was a baby born of this marriage and . . .
A. No, it is a question of fact which may be of assistance if - to present evidence of the marriage in good faith. [My emphasis.]
E. ANALYSIS
(i) Appeal de novo
[19] The hearing before the tribunal was an appeal de novo. This means that the plaintiff could present new evidence to the tribunal and that the latter was not required simply to review the decision by the immigration officer, but had to take new evidence into account. Speaking for a unanimous Federal Court of Appeal, Heald J.A. said the following in Canada (Minister of Employment and Immigration) v. Gill (H.K.) (1991), 137 N.R. 373 (F.C.A.), at 377:
[9] . . . It is noteworthy to observe that the jurisprudence of this Court has established that a hearing of this nature is a hearing de novo in a broad sense [See Kahlon v. M.E.I. 97 N.R. 349], and at such a hearing the Board is entitled to consider contemporary matters which necessarily involve a consideration of changed circumstances when exercising its equitable jurisdiction. [My emphasis.]
[20] In Rattan v. Minister of Employment and Immigration (1994), 73 F.T.R. 195, Reed J. concluded, at 198:
[6] The Appeal Division treated the appeal under section 77 as more than just a review of the immigration officer's decision on the basis of the evidence before him. The Appeal Division heard additional evidence, from the applicant, which was not before the immigration officer who made the initial refusal. It addressed its reasons to the evidence before it and decided the issues on that basis.
[7] An appeal under section 77 is not a judicial review where only the correctness of the immigration officer's decision on the basis of the material before him or her is under consideration. This is clear from subsection 77(3) which allows for appeals on questions of fact and from the procedure followed which allows the sponsor, in Canada, to call witnesses and other evidence. The Appeal Division's role is not to determine whether the immigration officer's decision was correctly taken, but to determine if the sponsoree is in fact a member of the class of persons excluded by s. 4(3) of the Regulations: Mohammed v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 90 (C.A.) per Thurlow C.J. For that purpose the sponsor's evidence, and the immigration officer's decision must be reviewed in coming to the decision. If the sponsor can satisfy the panel that the immigration officer's conclusions were incorrect, an appeal is allowed. [My emphasis.]
[21] In Kahlon v. Canada (Minister of Employment and Immigration) (1989), 97 N.R. 349 (F.C.A.), Mahoney J.A. said:
[5] The effect of that decision is, in my opinion, that the hearing of an appeal by the Immigration Appeal Board is a hearing de novo in a broad sense. [My emphasis.]
[22] It appears from the decided cases that the tribunal must take new evidence and changed circumstances into account.
(ii) Burden of proof
[23] The two-stage test for excluding a sponsored spouse in the family class was developed by Strayer J. in Horbas v. Minister of Employment and Immigration and Secretary of State for External Affairs, [1985] 2 F.C. 359, at 365 and 369:
It should first be observed that the test is a double test: that is, the spouse is disqualified under subsection 4(3) only if the marriage is entered into primarily for the purpose of gaining admission to Canada and not with the intention of residing permanently with the other spouse.
. . . . .
It must be kept in mind that in order to reject such an application on the basis of this subsection, it must be found that there is both a marriage entered into by the sponsored spouse primarily for purposes of immigration and lack of intention on his or her part to live permanently with the other spouse.
[24] Accordingly, to determine whether a spouse is excluded under s. 4(3) the analysis imposed by Horbas must be made. However, despite the fact that it is the intention of the sponsored relative that is of primary importance, it is for the plaintiff to present evidence challenging the immigration officer's conclusion that the marriage was not a marriage in good faith, since the sponsor has the right of appeal.
[25] In Rattan, supra, Reed J. said at 198:
[7] . . . If the sponsor can satisfy the panel that the immigration officer's conclusions were incorrect, an appeal is allowed.
[26] In Quao v. Minister of Citizenship and Immigration, [2000] F.C.J. No. 1283, Blais J. also said:
[30] The applicant had to prove to the Appeal Division that the visa officer erred in refusing to grant a permanent residence visa to his wife.
[27] What is clear from the precedents is that the plaintiff has a duty to establish on a balance of probabilities that the sponsored spouse did not get married solely in order to immigrate to Canada and intended to live permanently with him. Accordingly, despite the fact that it is the intention of the sponsored relative which is crucial, it is for the plaintiff to present evidence to challenge the immigration officer's conclusion that the marriage was not a marriage in good faith, since the right of appeal belongs to the sponsor.
[28] The plaintiff argued that asking him to answer questions about how the interview proceeded placed him in an impossible position since he was not present at the interview and his wife was not before the tribunal. I do not agree.
[29] In the case at bar, I do not think the tribunal placed any greater burden upon him than was intended by the Act. The plaintiff's function at his appeal before the tribunal was to persuade the latter that the marriage was one in good faith.
[30] The burden is not insurmountable. For example, in Meelu v. Canada (Minister of Citizenship and Immigration), [2000] 3 Imm.L.R. (3d) 193, the plaintiff's wife testified by teleconference call:
[13] . . . The applicant's spouse's own testimony before the Tribunal, given by long distance telephone and recorded in the transcript, indicates that she did not speak English although in other evidence in the Tribunal Record, the applicant's spouse claimed to read and write English "well" and speak it "with difficulty".
[31] In Brar v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm.L.R. (2d) 186 (Immigration and Refugee Board Appeal Division), the appellant submitted an affidavit by her spouse and the latter testified by conference call. Further, her father and sister testified and submitted affidavits:
[13] Both the appellant and the applicant testified, the latter from India by teleconference through an interpreter. Counsel for the appellant did not elicit any evidence from the applicant in direct examination. In cross-examination, counsel for the respondent spent considerable time questioning the applicant about the circumstances in which he swore an affidavit found as Item 4, Exhibit A-1.
[19] . . . Both the appellant and the applicant were credible witnesses and the Appeal Division finds they gave reliable and trustworthy evidence. The appellant's father and sister, Harjit, also testified and were credible witnesses. The applicant's father supplied affidavit evidence which was adduced as Item 3, Exhibit A-1, and the Appeal Division finds this evidence reliable and trustworthy.
(iii) Jurisdiction
[32] When the tribunal finds that a spouse is not a "member of the family class" within the meaning of the Act, it is entitled to refuse to undertake consideration of the second part of s. 77(3). The tribunal can only make a ruling in equity when the refusal is of a non-jurisdictional kind, such as for medical reasons. However, when the refusal is jurisdictional in nature it must dismiss the appeal for want of jurisdiction and so has no power to grant special relief in equity.
[33] This rule has been laid down clearly by the courts. It was stated by Gibson J. in Canada (Minister of Citizenship and Immigration) v. Singh (1996) (F.C.), 121 F.T.R. 196:
[7] The tribunal having concluded, as it did, that the rejection of Surinder Kaur's application for landing was valid in law, and that rejection having been based on a conclusion that Surinder Kaur was not a member of the family class, the Tribunal lacked jurisdiction under s. 77 of the Immigration Act to consider the respondent's appeal. Thus the tribunal was without jurisdiction under s. 77 to allow the respondent's appeal on the basis of humanitarian and compassionate considerations. [My emphasis.]
[34] It was repeated by Reed J. in Chow v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 236 (F.C.), at 237:
[3] Unfortunately, as the Immigration Appeal Division stated, it does not have jurisdiction to hear her appeal because the son (her brother) is not a member of the applicant's family class as defined in section 2 of the Immigration Regulations. A Court of Appeal decision that confirms this to be the law is Bailon v. The Minister of Employment and Immigration, [1986] F.C.J. No. 386.
[35] Recently, in Samra v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1491 (F.C.), Muldoon J. summed it up as follows:
[2] The appellant sponsor allegedly adopted the applicants, Balijhit Singh Samra and Mandeep Kaur Samra, (his biological niece and nephew) in 1995, with the consent of their natural parents who remain alive and in contact with the applicants. Both the immigration officer and the Appeal Division refused the applications for permanent residence on the grounds that the applicants had not been adopted in accordance with the Immigration Regulations, 1978 SOR/78-172, as amended and Indian law and, thus, did not constitute members of the family class. Therefore the Appeal Division found that the applicants are not members of the "family class" and dismissed this appeal "for lack of jurisdiction".
. . . . .
[8] Recent case-law suggests that where an applicant falls outside the definition of "family class", the tribunal is correct in holding that it does not have the jurisdiction to make a determination regarding the application for landing.
. . . . .
[11] Once a determination as to membership in family class has been made, a jurisdictional issue of the Immigration Appeal Division must be considered. As the Appeal Division only can hear those family class appeals where the applicants are found to be within the provided definition, if the applicant is determined to be outside that category, the Appeal Division has no jurisdiction to make a determination regarding the application for landing. With regards to the specifics of the matter, the appeal was dismissed as the applicants were found not to be members of the family class. Based on this determination, the Appeal Division lacks the requisite jurisdiction to make a determination on the application. [My emphasis.]
[36] In Bailon v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 386, Hugessen J.A. said at 3:
In our opinion the Board rightly declined jurisdiction to hear the appeal. The application for landing made by the appellant's mother, the only member of the family class to apply, was not refused; what was refused was the application for landing of the appellant's half-brother as a dependant of his mother. Section 79 of the Act makes it quite clear that a sponsor only has the right of appeal from the refusal of an application by a member of the family class, not from the refusal to include an alleged dependant of such a member. [My emphasis.]
(See also Chattat v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 813 (F.C.).)
[37] Consequently, since the tribunal found that the applicant was a person covered by s. 4(3) of the Regulations, it was not in a position to take humanitarian considerations justifying the granting of special relief into account.
(iv) Standard of review
[38] The Refugee Division of the Immigration and Refugee Board is a specialized tribunal with expertise in the assessment of facts. As such, as Décary J.A. noted in Aguebor v. M.E.I. (1993), 160 N.R. 315 (F.C.A.), at 316, its findings should not be reversed unless they are unreasonable:
[4] There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
[39] In the case at bar, as appears from the tribunal's decision, the appeal was dismissed because the tribunal held that the plaintiff was not credible. The tribunal gave as examples the fact that the plaintiff did not try to explain certain contradictions and presented no evidence to establish there was a marriage in good faith.
(v) Interpretation of evidence
(a) Photos
[40] The tribunal found that the photos submitted were not sufficient to persuade it that a marriage ceremony had actually taken place. This conclusion by the tribunal was in error in view of the fact that it knew that the photos submitted to the visa officer were not persuasive and refused to admit any others.
[41] It was unreasonable for the tribunal to refuse the additional photos of the marriage ceremony offered by the plaintiff. There is no doubt that it is up to the tribunal to determine the evidentiary value of all evidence. However, this was not a situation in which the evidentiary value attached to evidence was being questioned. Rather, it was the tribunal's refusal to admit the evidence that was in question. Because of that refusal, the plaintiff did not submit additional photos. Since the hearing before the Appeal Division is an appeal de novo, the tribunal ought to have examined all evidence. This is a departure from procedural fairness in the case at bar which opens the way to review.
(b) Contradictory statements
[42] The plaintiff had the burden of persuading the tribunal that the marriage was in good faith. In order to discharge his burden he could have clarified his spouse's contradictory statements. As an example of a contradictory statement the tribunal gave the following:
[TRANSLATION]
Letter A-2 was dated July 5, 1998 and sent to the appellant by the applicant. The evidence was that the appellant was in Vietnam from July 2 to August 11, 1998. The appellant did not even try to explain this coincidence which was to say the least improbable, if not unreasonable. [My emphasis.]
[43] Nonetheless, the transcript indicated that the plaintiff testified in this regard:
[TRANSLATION]
Q. The second time - you left on July 2, 98 and returned on August 11, 98: is that right?
. . . . .
A. In the airline ticket the second time - the second time - it was June 30, June 30, 97 till August 11, 97 [when] I returned to Canada. And then another time - another time - on December 12, 98, then I returned on February 26, 99.
- Thank you.
- You see in document Exhibit 9, which was signed by your spouse - she says you returned from July 2, 98 to August 11, 98.
A. Yes.
Q. So then, this might be an error in the year, if I understand correctly?
A. Sometimes when she is nervous, yes, she can make mistakes.
- Right.
[44] It is apparent from reading this extract that the tribunal misunderstood the evidence. Contrary to what the tribunal maintained, the evidence shows that the plaintiff explained the contradiction. The tribunal simply chose to ignore this explanation. In the circumstances this is an incorrect assessment of the facts.
[45] Another alleged contradiction referred to by the tribunal had to do with the first meeting between the plaintiff and his spouse. The latter indicated on her sponsorship application that the plaintiff's sister introduced them. However, at her interview she said that she met the plaintiff when he came to her hair care salon. Before the tribunal, the plaintiff testified that he met his wife at the hair care salon when he had his sister with him. There is no contradiction there, since both are consistent as one situation does not exclude the other. In the circumstances, the plaintiff did not contradict his spouse.
[46] The tribunal stated that the plaintiff contradicted himself about the date on which the plaintiff asked his sister to take steps to arrange the marriage with his spouse. Nevertheless, on reading the transcript it appears that the tribunal once again misinterpreted the evidence. The tribunal stated that:
[TRANSLATION]
When cross-examined by counsel for the Minister, the appellant altered his version of the facts somewhat.
Accordingly, he said that it was not on January 10 but on January 5, 1997, the day after his arrival, that he said he asked his elder sister to take steps to obtain the applicant's hand in marriage, and it was on January 9 that his elder sister went to the applicant's adoptive grandmother's home to investigate the possibilities of a marriage.
[47] Nonetheless, the transcript indicated that:
[TRANSLATION]
Q. So it was on the 9th that your sister began arranging the marriage?
A. Yes.
- O.K.
[48] This extract indicates that the tribunal again misinterpreted the evidence when it said that the plaintiff had changed his testimony in cross-examination and said that he asked his sister to arrange the marriage on January 5.
[49] The tribunal drew another incorrect conclusion from the evidence about a two-hour conversation that allegedly took place between the plaintiff and his spouse. The tribunal concluded that this conversation took place on January 4, not January 9 as the plaintiff testified. On reading the transcript it is apparent that the plaintiff did not testify that he had the conversation on January 9, but in fact on January 4.
[50] The tribunal described the letters between the plaintiff and his wife as full of accusations and recriminations. It appeared from reading the record that the tribunal misinterpreted the content of the letters because it failed to read them in their context.
[51] Further, the tribunal referred to a letter which predated (1989) the meeting of the plaintiff and his spouse as undermining the plaintiff's credibility since he testified that he met his spouse in 1997. However, reading the certified record indicates no letter dated 1989.
[52] Reading the transcript does show that the tribunal relied on the evidence in arriving at conclusions about (1) the confusion concerning the number of guests at the ceremony, (2) the inaccuracies regarding the way the ceremony took place, and (3) the telephone bills.
[53] As a general rule, the tribunal's conclusions on credibility are not subject to judicial review. However, it seems clear that the tribunal misinterpreted the evidence or ignored it about major points which undermined the plaintiff's credibility. In these circumstances, the review application has to be allowed.
(c) Birth of child
[54] In the case at bar it appeared that the tribunal relied on the officer's conclusions rather than on the evidence submitted by the plaintiff in making a decision. The most blatant example of this omission is the fact that the tribunal did not deal with the question of the child's birth.
[55] Reading the tribunal's decision indicates no discussion of the birth of the plaintiff's son as a point that could establish a bona fide marriage. Nevertheless, the plaintiff filed a birth certificate and the tribunal did not question the plaintiff's paternity. In my opinion, this omission indicates that the tribunal did not make a complete review of the evidence and so committed a reviewable error as mentioned by Heald J.A. in Toro v. Minister of Employment and Immigration, [1981] 1 F.C. 652 (F.C.A.), at 652:
It appears therefore that the Board, in making its decision has not had regard to the totality of the evidence properly before it.
It has therefore erred in law.
[56] In Pabla v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2054, Blais J. stated that:
Given that an appeal to the Board is considered a de novo proceeding, the Board is open to considering issues which were not before the visa officer.
[57] In the case at bar it is quite clear that the tribunal did not consider all the evidence, since it concluded that the plaintiff had provided no evidence to establish a bona fide marriage.
F. QUESTION CERTIFIED
[58] The plaintiff asked that the following question be certified:
[TRANSLATION]
When the validity of the marriage is not in question, but the appellant's spouse is covered by the provisions of s. 4(3) of the Regulations, can these facts be the basis for a limitation or want of jurisdiction in the Appeal Division to take humanitarian considerations into account that will justify the granting of special relief?
[59] Since the courts have already ruled on this point, there is no serious question of general importance to be certified pursuant to s. 83(1) of the Act.
G. DISPOSITION
[60] This application for judicial review is allowed. The tribunal's decision is quashed and the matter is referred back to the tribunal for re-determination by other members.
Ottawa, Ontario
March 6, 2001
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: IMM-424-00
STYLE OF CAUSE: PHUNG SAM BUI v. MCI
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 23, 2000
REASONS FOR ORDER BY: LEMIEUX J.
DATED: March 6, 2001
APPEARANCES:
Michel Le Brun FOR THE PLAINTIFF
Michel Pépin FOR THE DEFENDANT
SOLICITORS OF RECORD:
Michel Le Brun FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
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