Date: 20080201
Docket: IMM-5344-06
Citation: 2008
FC 133
Ottawa, Ontario, February 1, 2008
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
PHI
ANNE THACH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Mr. Phi Anne Thach
(the “Applicant”) seeks judicial review of the decision of the Immigration and
Refugee Board, Immigration Appeal Division (the “IAD”), dated September 15,
2006. In its decision, the IAD dismissed the appeal from the decision of a
visa officer who had refused the application for a permanent resident visa for
the Applicant’s spouse, Ms. Chong Zenh Ung. The visa officer had refused to
issue the visa because she was not satisfied that Ms. Chong Zenh Ung was a
member of the family class under section 12 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (the “Act”) and sections 116 and 117(1)(a)
of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the
“Regulations”).
[2]
The
Applicant is a 47-year old Canadian citizen who was born in Vietnam. He lives in Windsor with a paternal uncle of his
wife. The uncle introduced the Applicant to his niece by showing a photograph
of her in March 2002. Subsequently, the Applicant spoke with the niece by
telephone before travelling to Vietnam in July 2002 and marrying her
on July 12, 2002.
[3]
The
Applicant applied for a permanent resident visa for his wife on June 11, 2003.
On March 18, 2004, the wife was interviewed by a visa officer at the Canadian
High Commission in Singapore. By letter dated April 7,
2004, a visa officer from the Canadian High Commission in Singapore found that Ms. Zenh was not a
member of the family class under the Regulations and refused the sponsorship
application.
[4]
The Applicant
appealed the decision of the visa officer before the IAD. Evidence was heard
from the Applicant and his wife. Ultimately, the IAD issued a lengthy
discussion dismissing the appeal. The key finding made by the IAD was that the
marriage between the Applicant and his spouse was not genuine under section 4
of the Regulations because it had been entered into primarily for the purpose
of obtaining status under the Act. The IAD commented upon the length of time
the Applicant and his wife had known each other, the discrepancies in their
ages, inconsistent evidence about the circumstances surrounding the choice of
the wedding date, and the relatively short passage of time between the first
meeting of the spouses and their wedding.
[5]
The
Applicant argues that the IAD made unreasonable and erroneous plausibility
findings. He submits, as well, that the IAD erred by not taking cultural
factors about overseas marriages into account when assessing the genuineness of
a marriage.
[6]
Further,
the Applicant argues that the IAD committed a breach of procedural fairness by
relying on the Computer Assisted Immigration Processing System Notes (the
“CAIPS notes”) as a transcript of what was said at the interview of the
Applicant’s wife, in the absence of an affidavit from the Visa Officer.
[7]
Finally, the
Applicant submits that the IAD erred by not accepting the fact that the
evidence required a shift in the burden of proof such that the Minister of
Citizenship and Immigration (the “Respondent”) was required to call evidence.
In the absence of such evidence, the IAD erred by not drawing a negative
inference against the Respondent.
[8]
The
Respondent addressed two issues. First, he argues that the Applicant has failed
to show that the decision of the IAD was patently unreasonable. Next, he
submits that the Applicant has failed to show that the IAD committed a breach
of natural justice.
[9]
The first
matter to be addressed is the applicable standard of review, having regard to a
pragmatic and functional analysis. Four factors are to be considered: the
presence or absence of a privative clause; the expertise of the tribunal; the
purpose of the legislation and the nature of the question.
[10]
There is
no privative clause in the Act. No full right of appeal is provided but
judicial review is available, if leave is granted. Accordingly, the first
factor is neutral.
[11]
The IAD is
a specialized tribunal and is mandated by the Act to determine questions of
fact and of law. The specialized nature of the IAD favours deference to its
decision.
[12]
The broad
purpose of the Act is to regulate the admission of immigrants into Canada and to maintain the security
of Canadian society. This involves consideration of many interests that may be
in conflict with each other. Decisions made in a polycentric context tend to
attract judicial deference.
[13]
The final
factor is the nature of the question. Here, the IAD conducted a de novo
hearing relative to the issuance of a permanent resident visa to the
Applicant’s spouse. The genuineness of the Applicant’s marriage was in issue,
having regard to the Act and the Regulations. Section 12 of the Act and Section
4 of the Regulations are relevant here and insofar as the IAD is to assess the
genuineness of a marriage against statutory requirements, it is dealing with a
question of mixed fact and law. However, the issue in this case is factually
intensive.
[14]
Upon
balancing the four factors involved in a pragmatic and functional analysis, I
conclude that the applicable standard of review in this case is that of patent
unreasonableness.
[15]
Errors of
law and breaches of procedural fairness are not subject to a pragmatic and
functional analysis and are reviewable upon the standard of correctness.
[16]
The
Applicant’s arguments address plausibility findings, an error of law and an
alleged breach of procedural fairness with respect to the use made of the CAIPS
notes by the IAD.
[17]
The IAD’s
plausibility findings are in the nature of factual findings. They are
reviewable on the standard of patent unreasonableness. This standard requires
consideration of the evidence submitted, including the evidence about the
introduction of the Applicant and his wife, their initial meeting, the timing
of their marriage, the history of their communications by telephone and by
mail, and visits by the Applicant to Vietnam
after the marriage.
[18]
The IAD
concluded that the Applicant had failed to show that the marriage had not been
entered into primarily for the purpose of acquiring any status or privilege
under the Act. I am satisfied that this conclusion is not patently unreasonable
and demonstrates an understanding and application of the test for assessing the
genuineness of a marriage. I refer to the decision in Horbas v. Canada (Minister of Employment and
Immigration),
[1985] 2 F.C. 359 where the Court said the following at page 365:
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.
[19]
The
two-part test was restated in the recent decision in Donkor v. Canada (Minister of Citizenship and
Immigration,
[2006] F.C.J. No. 1375 (F.C.) as follows:
1.
The
genuineness of the relationship must be considered in the present tense such
that a relationship that may not have been “genuine” at the beginning may have
become genuine; and
2.
Consideration
must be given as to whether the relationship was entered into primarily for the
purpose of acquiring any status or privilege under the Act.
[20]
According
to the decision in Khera v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 886, the
first prong of the test includes analysis of the following factors: the length
of the parties’ prior relationship before the marriage, their ages and any
difference in age, their former marital or civil status, their respective
financial situations and employment histories, their family backgrounds, their
knowledge of each other’s personal histories, their language, their respective
interests, family connections in Canada, and prior efforts by the sponsored
spouse to enter Canada.
[21]
On the
basis of the evidence submitted during the hearing of the Applicant’s appeal,
the IAD could reasonably conclude that the acquisition of status under the Act
was a primary factor for the marriage of the Applicant and his spouse. There
was no independent evidence about cultural norms for the entry of arranged marriages
in Vietnam. The presentation of such
evidence may have affected the IAD’s decision but it cannot be faulted for its
absence.
[22]
I turn now
to the Applicant’s argument that the IAD erred in law by not finding that the
burden shifted to the Respondent once an applicant has adduced evidence in
support of the genuineness of the marriage.
[23]
I reject
this argument. The Act clearly imposes a burden upon a person seeking a visa to
submit sufficient evidence to show that the issuance of a visa is not contrary
to the Act or Regulations. I refer to subsection 11(1) of the Act which
provides as follows:
|
11.(1)
A foreign national must, before entering Canada, apply to an officer for a visa or for
any other document required by the regulations. The visa or document shall be
issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
|
11.(1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement, lesquels sont délivrés sur
preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et
se conforme à la présente loi.
|
[24]
Here, the
Applicant was faced with the onus of showing that his wife was a member of the
family class as defined in section 117 of the IRPA Regulations. He was required
to show that the marriage was genuine for the purposes of the Act and the
Regulations. The onus did not shift to the Respondent. Accordingly, it follows
that the IAD did not err in law in this respect.
[25]
Finally,
the issue of alleged breach of procedural fairness remains to be addressed. Did
the IAD commit a reviewable error by relying on the CAIPS notes in the absence
of an affidavit from the Visa Officer?
[26]
I am
satisfied that there is no breach of procedural fairness as alleged. The CAIPS
notes were but part of the evidence before the IAD. It is clear that the IAD
considered the oral evidence of the Applicant and his wife, as well as the
other evidence that was submitted, in reaching its decision. There is no basis
for judicial intervention in this case and the application for judicial review
is dismissed.
ORDER
The application for judicial review is
dismissed. There is no question for certification arising.
“E.
Heneghan”
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