Date: 20090923
Docket: IMM-127-09
Citation: 2009 FC 955
Ottawa, Ontario, September 23,
2009
PRESENT: The Honourable Mr. Justice Mainville
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Applicant
and
QIANG
LIANG
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Background
[1]
Mr. Qiang Liang is a Canadian citizen born in China. He immigrated to Canada
and subsequently obtained his Canadian citizenship on September 29, 1997. He
married Ms. Rong Ji Zeng in China on July 17, 2006 and consequently sponsored
her application and that of her minor son by a previous marriage.
[2]
A Designated Immigration Officer interviewed Ms. Rong Ji Zeng on April
3, 2007 at the Consulate General of Canada in Hong Kong and proceeded to an
assessment of the application. This assessment resulted in the conclusion that
Ms. Rong Ji Zeng did not meet the requirements for immigration to Canada as a
member of the family class.
[3]
The interview notes of the Officer raise many issues with regard to the
credibility of the marriage from the perspective of Ms. Rong Ji Zeng, notably
that she had little knowledge of her spouse, of his background, of his family
composition, of his education level, and of his employment in Canada. She was
unable to give details on how she met her spouse or on their relationship, nor
could she describe her wedding day.
[4]
Consequently the Officer was not satisfied that the relationship was
genuine and was rather of the opinion that Ms. Rong Ji Zeng had married her
sponsor primarily for gaining admission to Canada as a member of the family
class and not with the intention to reside permanently in Canada with her
spouse should admission to Canada be granted. Both Ms. Rong Ji Zeng and Mr. Qiang
Liang were notified in writing of this refusal by letters dated April 4, 2007.
[5]
Mr. Qiang Liang appealed to the Immigration Appeal Division against this
decision pursuant to subsection 63 (1) of the Immigration and Refugee
Protection Act (“Act”), S.C. 2001, c. 27. A hearing was eventually held on
this matter on November 20, 2008 at which time Mr. Qiang Liang was heard on the
appeal.
[6]
In a decision dated December 22, 2008, a Panel of the Immigration Appeal
Division allowed the appeal.
[7]
The Minister of Citizenship and Immigration (“Minister”) sought judicial
review of this decision by the Federal Court and submitted an Application for
leave and for judicial review pursuant to subsection 72(1) of the Act, and
leave was granted by Justice Lemieux by Order dated June 17, 2009.
[8]
Following the Application for leave, the Records Clerk of the
Immigration and Refugee Board confirmed that the recording of the hearing held
on November 20, 2008 could not be located.
[9]
Though Mr. Qiang Liang was served with a copy of the Application for
leave and for judicial review, he did not file a Notice of Appearance. He has
not subsequently participated in the judicial review process and did not appear
personally or through counsel at the hearing on this judicial review held in Montreal
on September 15, 2009.
Issues
[10]
The issues raised by the Minister were somewhat different in oral
argument than those found in the Minister’s Memorandum of Argument. For the
purposes of these reasons, I will summarize the issues raised by the Minister
as follows:
a.
The Immigration Appeal Division erred in law by “assessing the
genuineness of the relationship through only the Respondent’s alleged
intentions and by disregarding the wife’s intentions” thus erring in law in its
application of section 4 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (“Regulations”) which provides that “for the purposes of these
Regulations, a foreign national shall not be considered a spouse […] of a
person if the marriage […] is not genuine and was entered into primarily for
the purpose of acquiring any status or privilege under the Act.” (paragraphs 13
and 14, and 23 to 39 of the Applicant’s Further Memorandum of Argument);
b.
The Immigration Appeal Division erred by reaching conclusions
which were not supported by the evidence since the testimony of Mr. Qiang Liang
was not credible (paragraphs 19 to 22 of the Applicant’s Further Memorandum of
Argument).
[11]
In regards to the credibility issue, the Minister adds that the absence
of a transcript prevents the Court from dealing adequately with the matter,
thus warranting in this case a new hearing.
.
[12]
The Minister states that on the first issue, this Court should review
the matter on a standard of correctness, and on the second issue relating to
credibility, it should review the matter on a standard of reasonableness.
Analysis
[13]
I do not consider the first issue raised by the Minister to be a question
of law, but rather one related to the manner in which the concerned Panel of
the Immigration Appeal Division weighed the evidence before it. Consequently I
am of the view that there is only one issue before this Court, and that is, if
the conclusion reached by the Panel was reasonable in light of the evidence
before it. I will therefore review the decision on a standard of
reasonableness.
[14]
Concerning the absence of a transcript of the hearing, this raises an
issue of natural justice which has been dealt with many times by this Court and
which is governed by the principles set out by the Supreme Court of Canada in SCFP
v. Montreal, [1997] 1 S.C.R. 793 and which are discussed further below.
[15]
It is trite law that factual findings of administrative tribunals must
not be disturbed on judicial review save exceptional circumstances. This Court
must not revisit the facts or weigh the evidence (see among other Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190, at para. 51 and 53: “Where
the question is one of fact, discretion or policy, deference will usually apply
automatically.”; Canada (Citizenship and Immigration) v. Khosa,
[2009] 1 S.C.R. 339, at para. 46: “More generally it is clear from s.
18.1(4)(d) (of the Federal Courts Act) that Parliament intended
administrative fact finding to command a high degree of deference”); SCFP v.
Montreal, supra at para. 85).
[16]
This standard of review has consistently been held to apply to decisions
of the Immigration Appeal Division concerning findings of fact or of
credibility in the context of sponsorship applications: Leroux v. Canada
(Minister of Citizenship and Immigration), 2007 FC 403, at para. 16
(Tremblay-Lamer J.); Canada (Minister of Citizenship and Immigration) v.
Navarrette, 2006 FC 691, at para.17 (Shore J.); Sanichara v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1015, at para. 11
(Beaudry J.); Khangura v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 815, at para. 21 (O’Keefe J.).
[17]
In this case, there are no detailed explanations or descriptions of the
factual elements on which the Panel relied in order to allow the appeal. On the
contrary, almost all the conclusions of the Panel regarding credibility lead to
a result adverse to the one reached. Since there is no transcript of the
hearing which would allow this Court to adequately dispose of the application
for judicial review, and having regard to the particular circumstances of this
case, a new hearing before another panel is warranted.
[18]
The following factual findings of the Panel are particularly revealing:
a.
While Mr. Qiang Liang declared having met his wife in August 2001
at his mother’s funeral, his wife declared in her questionnaire that they first
met in 2006. Mr. Qiang Liang offered an explanation of this inconsistency, but
“the tribunal does not deem this explanation to be credible” (para. 7 of the
Reasons for Decision);
b.
Mr. Qiang Liang explained that his wife had come to this funeral
at the request of his brother, a co-worker of his then wife to be. In this
regard the Panel stated the following: “the tribunal questions why the
appellant stated in the appeal record that the applicant first met his elder
brother in 2004; the appellant was unable to offer any credible explanation for
this inconsistency.” (para. 8 of the Reasons for Decision);
c.
With regards to the first meeting between the spouses, the Panel
noted that Ms. Rong Ji Zeng had stated elsewhere in the record that they would
recognize each other through photographs. Given that they had allegedly already
met before, the Panel questioned why photographs were required for the spouses
to recognize each other. The Panel concluded that Mr. Qiang Liang “was unable
to offer a plausible explanation stating that perhaps she didn’t recollect what
he looked like. The tribunal notes that this explanation is not credible…” and
“would seem to indicate that she had never seen the appellant before.” (para.
11 of the Reasons for Decision);
d.
The Panel also noted inconsistencies in regard to the presence of
the wife’s son at various events, such as at the first meeting of the couple in
July of 2006 and at the wedding reception. The Panel concluded that Mr. Qiang
Liang was “unable to offer a plausible explanation for this inconsistency” (para.
14 and 16 of the Reasons for Decision);
e.
Mr. Qiang Liang was unaware of the fact that his wife had
transferred to a new work location in September of 2008 even though he claimed
very regular correspondence and communications with her, correspondence which
was “not corroborated by the documentary evidence filed in support of this
appeal.” (para. 20 and 21 of the Reasons for Decision);
f.
The Panel also noted that there were numerous contradictions and
a fair number of unresolved inconsistencies in this case and recognized “the
credibility issues which remain unresolved...” (para. 23 of the Reasons
for Decision, emphasis added).
[19]
The Panel nevertheless granted the appeal essentially for the reasons
set out in paragraphs 17 and 23 of its Reasons for Decision:
The appellant
was very knowledgeable with regards to the applicant’s relatives, jobs,
employment history and address; that being said, the tribunal cannot
discount that such information could have been memorized. The appellant
nevertheless was able to corroborate almost all of the information contained in
the appeal record. Overall, the tribunal found him to be a credible witness and
believes that his intentions with regards to the applicant are sincere.
The tribunal
notes that there are numerous contradictions and a fair number of unresolved
inconsistencies in this case as noted hereinabove. Nevertheless, the
tribunal believes that the appellant’s intentions in marrying the applicant
were genuine and undertaken in good faith. Considering the fact that the
majority of the testimony given by the appellant corroborated the documentary
evidence filed in support of this appeal; considering his knowledge of her
family; considering the regular, on-going, albeit less frequent than alleged
contact and communication between the appellant and his wife; accordingly, despite
the credibility issues which remain unresolved, the tribunal feels that the
appellant should be given the benefit of the doubt in this case.” (Emphasis added).
[20]
Moreover, the Panel only considered the genuineness of the relationship
through the intentions of Mr. Qiang Liang and appears to have somewhat
discounted the intentions of his wife Ms. Rong Ji Zeng. This is particularly
disturbing in light of the fact that the Immigration Officer who interviewed
her in Hong Kong had serious credibility issues with her, and it was these
credibility issues (not those related to Mr. Qiang Liang) which were at the
heart of the refusal and which were the core issues in appeal: Canada
(Solicitor General) v. Bilsa, [1994] F.C.J. No. 1785, at para. 9-10
(Denault J.); Canada (Minister of Citizenship and Immigration
v. Navarette, 2006 FC 691, at para. 18 to 23 (Shore J.).
[21]
In support of the judicial review application, the Minister submitted
the affidavit of Arianne Cohen who represented the Minister in the appeal
before the Panel. In this affidavit Ms. Cohen noted that the Minister had asked
that the appeal be rejected in light of the numerous contradictions and
credibility issues in the testimony of Mr. Qiang Liang and on the basis that
the issue at stake was the credibility of his wife, who had not been called to
testify by the appellant. Ms. Cohen states in her affidavit that persons who
are not in Canada may testify before the Immigration Appeal Division through
teleconferencing and that she has personally been present in many instances where
testimony was heard by telephone communications before this Division.
[22]
Concerning the absence of a transcript, it is conceded by the Minister
that neither the Act nor the Regulations require that a transcript be prepared
or a recording be made of a hearing before the Immigration Appeal Division. In
such circumstances, the applicable legal principles are those stated by Justice
L’Heureux-Dubé (for a unanimous bench of the Supreme Court of Canada) in the
case of SCFP v. Montreal, supra at para. 81:
In the absence
of a statutory right to a recording, courts must determine whether the record
before it allows it to properly dispose of the application for appeal or
review. If so, the absence of a transcript will not violate the rules of
natural justice. Where the statute does mandate a recording, however, natural
justice may require a transcript. As such a recording need not be perfect to ensure
the fairness of the proceedings, defects or gaps in the transcript must be
shown to raise a “serious possibility” of the denial of a ground of appeal or
review before a new hearing will be ordered. These principles ensure the
fairness of the administrative decision making process while recognizing the
need for flexibility in applying these concepts in the administrative context.
[23]
These principles reflect to a large extent those set out by the Federal
Court of Appeal in Kandiah v. Minister of Employment and Immigration (1992),
141 N.R. 232 and which were discussed and approved by the Supreme Court of
Canada in SCFP v. Montreal, supra at para. 76 to 80. In Kandiah
the Federal Court of Appeal found that in the absence of an express statutory
requirement, the lack of a transcript or recording of an administrative
tribunal’s proceedings (in that case the Refugee Division of the Immigration
and Refugee Board) did not in and of itself vitiate a decision of the concerned
administrative tribunal. It held that if the evidence could be established
through other means, such as by affidavit, the principles of natural justice
would not be infringed, but that in appropriate circumstances the absence of a
record could constitute a breach of natural justice. As stated in SCFP v.
Montreal, supra at para. 80:
In my view,
the decisions in Kandiah and Hayes, supra, provide an
excellent statement of the principles of natural justice as they apply to the
record made of an administrative tribunal’s hearing. In cases where the record
is incomplete, the denial of justice allegedly arises from the inadequacy of
the information upon which a reviewing court bases its decision. As a
consequence, an appellant may be denied his or her grounds of appeal or review.
The rules enunciated in these decisions prevent this unfortunate result. They
also avoid the unnecessary encumbrance of administrative proceedings and
needless repetition of a fact-finding inquiry long after the events in question
have passed.
[24]
The recent case law from the Federal Court indicates that where the fundamental
issues at stake concern the reasonableness of the assessment of the credibility
of a witness by an administrative tribunal, and where the absence of a record
of the testimony of the concerned witness leads to the conclusion that the
Court cannot deal adequately with the concerns raised, then a new hearing may
be required: Agbon v. Canada (Minister of Citizenship and Immigration,
2005 FC 356, at paras. 3-4 (O’Reilly J.) ; Singh v. Canada (Minister of
Citizenship and Immigration, 2004 FC 426, at para. 3 (Beaudry J.);
Nguigi v. Canada (Minister of Citizenship and Immigration), 2004 FC 432, at
paras. 47-49 (Russell J.); Khaira v. Canada (Minister of Citizenship and
Immigration), 2004 FC 1071, at paras. 14 to 16 (Blais J., now C.J. F.C.A.);
Vergunov v. Canada (Minister of Citizenship and Immigration), (1999),
166 F.T.R. 94, at paras. 13-14 (Pelletier J.); Ahmed v. Canada
(Minister of Citizenship and Immigration), (2000), 182 F.T.R. 312, at para.
18 (Dawson J.).
[25]
In this case, there are serious credibility issues raised by the
Minister and confirmed by the Panel in regards to the testimony of Mr. Qiang
Liang, issues which seem to lead to the conclusion that the Panel’s decision is
not reasonable in these circumstances. However, the Court cannot fully and
adequately review these issues since a transcript of the proceedings is not available.
Moreover, there are also important credibility issues raised by the Immigration
Officer in regards to Ms. Rong Ji Zeng and, in the absence of a transcript of
the proceedings before the Panel, the Court has no basis on which to review how
and why the Panel disregarded these issues.
[26]
Consequently I allow the application for judicial review and refer the
matter to another Panel of the Immigration Appeal Division for re-determination.
[27]
No certified question was proposed and none is warranted in this case.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The
application for judicial review is allowed; and
2. The matter is returned for a new hearing and re-determination
before a different Panel of the Immigration Appeal Division.
"Robert
M. Mainville"
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