Date: 19990111
Docket: IMM-838-98
BETWEEN:
MY LIEN CHIEM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.:
[1] This is a judicial review of a decision of the Immigration Appeal Division finding insufficient, compassionate and humanitarian considerations to grant the applicant's appeal from an exclusion order. The validity of the exclusion order was not challenged. The sole issue is whether, in arriving at its conclusion, the Immigration Appeal Division took into account irrelevant considerations and was thereby improperly influenced in the exercise of its humanitarian and compassionate discretion.
[2] The applicant applied for an immigrant visa as a sponsored applicant. She subsequently obtained a marriage certificate and had a child. She failed to inform the visa officer of these events. The visa was issued and she travelled to Canada.
[3] When she arrived at the Canadian port of entry she disclosed to the immigration officer the marriage and the fact that she had a child. She was refused landing. After an adjudication, an exclusion order was issued on January 28, 1994. She appealed to the Immigration Appeal Division.
[4] By Order dated November 13, 1997, Mr. Justice M. B. O'Byrne of the Court of Queen's Bench for Alberta ordered:
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1. THAT, notwithstanding the existence of a certificate of marriage which apparently reflects a marriage between the Plaintiff and the Defendant at the commune of My Hoa Hung, in the Province of An Giang, in the Republic of Vietnam, there was no solemnisation and therefore no valid marriage and the Plaintiff is free from all bond therefrom. |
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[5] The applicant's hearing before the Immigration Appeal Division took place on November 26, 1997. The Immigration Appeal Division went to some length to deal with apparently conflicting information about the applicant's marriage and concluded the applicant was not a credible witness. The applicant says that in view of the Queen's Bench Order, the question of her marriage was irrelevant and findings of credibility based upon it improperly influenced the Immigration Appeal Division to exercise its discretion against the applicant.
[6] The Immigration Appeal Division was bound to accept the Queen's Bench judgment and it did so. However, it was being called upon to exercise its humanitarian and compassionate jurisdiction. In that context, I do not think the Immigration Appeal Division erred by having regard to conflicting evidence with respect to the marriage and finding that the applicant was not credible.
[7] The Immigration Appeal Division stated:
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... I find that the Appellant believed at the time of the issuance of her visa that she was legally married, as she did for years following. I find that the Appellant sought to deceive immigration officials about her marital status and dependant until her arrival at port of entry in Vancouver. I also find, on a balance of probabilities, that the Appellant has at this hearing actively sought to deceive me in order to obtain a decision in her favour. |
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[8] I find nothing inappropriate about these observations. They do not evidence a rejection or disregarding of the Queen's Bench judgment. They deal with the applicant's conduct relating to her marriage. That conduct may be taken into account in assessing credibility and in exercising humanitarian and compassionate discretion. In the context of exercising its humanitarian and compassionate jurisdiction, I do not think the Immigration Appeal Board took account of irrelevant considerations or was improperly influenced in the exercise of its discretion.
[9] The judicial review is dismissed.
Marshall Rothstein
Judge
Ottawa, Ontario
January 11, 1999
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