Date:
20130702
Docket:
IMM-10891-12
Citation:
2013 FC 736
Ottawa, Ontario,
July 2, 2013
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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THACH SEREIBOTH
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
Ideally,
husbands and wives should live together. However, the government has something
to say about it when a Canadian marries a foreigner and wants to bring him or
her home. Mr. Sereiboth married his wife, Tran Thi Nguyet, a resident and
citizen of Vietnam, more than five years ago. He has been unsuccessful in his
efforts to sponsor her.
[2]
First,
a visa officer rejected Ms. Nguyet’s application for permanent residence on the
basis of s. 4 of the Immigration and Refugee Protection Regulations, which
provides that a foreign national shall not be considered a spouse if the
marriage was not genuine and entered into primarily for the purpose of
acquiring status or privilege under the Immigration and Refugee Protection
Act (IRPA).
[3]
Mr.
Sereiboth, as her husband and sponsor, was entitled to appeal that decision in
accordance with s. 63(1) of IRPA. Following a review of the record, two
face-to-face interviews with Mr. Sereiboth and a telephone interview with Ms.
Nguyet, a member of the Immigration Appeal Division (IAD), of the Immigration
and Refugee Board of Canada, dismissed the appeal. This is the judicial review
thereof.
[4]
It
is one of the basic tenants of our rule of law that administrative decisions, which
affect the lives and destinies of individuals, are subject to judicial
scrutiny. Individuals must have a fair opportunity to make their case or their
defence before an impartial decision maker. The issue in this judicial review is
whether husband and wife were given a fair opportunity to make their case, and
whether the attitude of the decision maker gave rise to a reasonable
apprehension of bias.
[5]
I
am satisfied that this judicial review should be granted on both counts.
[6]
Mr.
Sereiboth has been in Canada for some 30 years. He was born Cambodian, but
spent a few years in Vietnam as a refugee from the Khmer Rouge. He speaks
Vietnamese.
[7]
After
his first marriage ended in divorce, by chance he ran into a former co-worker
at a donut shop in Montreal. She said her sister in Vietnam was also divorced,
and decided to play matchmaker.
[8]
A
telephone romance ensued, followed in reasonably quick succession by two visits
to Vietnam. During the second visit, they were married.
[9]
The
visa officer who interviewed Ms. Nguyet in Vietnam was not satisfied (the
burden being upon her) that the marriage was genuine and was entered into for a
Canadian immigration advantage. He noted some inconsistencies between what was
said at her interview and what had been written in her application forms. He
also considered the fact that she had two sisters living in Canada, which constituted a “pull”.
[10]
Mr.
Sereiboth’s appeal is de novo.
[11]
The
member of the IAD had every right to question credibility given the apparent
discrepancies between the written applications and the testimony of both
husband and wife. There was definitely some confusion and misunderstanding.
What is clear, however, is that husband and wife were not colluding to make up a
story. She was interviewed some three months after he was first interviewed,
yet there was still confusion.
[12]
The
member’s legitimate concern soon deteriorated into frustration, sarcasm, snide
remarks and the failure to at least try to understand ragged testimony through
an interpreter. This was a fundamentally important time for husband and wife.
They were entitled to respect. Credibility was put in issue because it was
written that they telephoned each other twice a week “at least”. In her
decision, the member forgot to mention “at least” and to draw a distinction between
telephone calls before marriage and after marriage.
[13]
There
was also confusion as to where she lived in the Vietnam. One mentioned a major
city and the other a suburb or district thereof. This cannot lead to a lack of
credibility, much less to a finding that this was a marriage of convenience.
[14]
There
was a great deal of confusion about the courtship in Vietnam. There seems to be
a distinction between discussing marriage and a formal engagement. The formal
engagement is also termed there as a “traditional marriage” which we might term
here as a common law relationship. There is also a state recognized marriage
which has two components: the date the papers are picked up from the registry
office and the date of the actual ceremony. Husband and wife tried to explain,
but the member would not listen. She said to the wife (page 366 of the Certified
Tribunal Record):
BY PRESIDING MEMBER (to applicant)
Q. This is even better. So
when did you actually get married? What’s the date of your marriage? Pick a
date, please. Just one.
[15]
The
member could not believe that the couple did not discuss prior to marriage
where they would live. Mr. Sereiboth simply assumed that his wife would join
him in Canada. He also testified that if he is unable to sponsor her, once he
earns a bit more money he will join her in Vietnam. The complete story was not
considered, i.e. the decision was made without taking into account all
of the evidence.
[16]
There
is some cultural insensitivity with respect to Mr. Sereiboth’s assumption that
his wife would join him in Canada. While two Canadians would undoubtedly have
that discussion today, it should not be forgotten that only 50 years Peggy
Marsh sang “I will follow him wherever he may go.”
[17]
While
frustration may be understandable, sarcasm is not. Many remarks were made to
the Minister’s delegate putting the decision maker’s impartiality into serious
question. For example, in trying to sort out Mr. Sereiboth’s use of a cell phone
as opposed to a calling card, the Certified Tribunal Record reads at page 303:
BY PRESIDING MEMBER (to minister’s counsel)
- No, the whole thing makes no sense, but
I’ve given up.
[18]
There
was also criticism arising out of the fact that Mr. Sereiboth was still
financially at risk for the sponsorship of his ex-in-laws. He did not share
that fact with her. He considered that he was not at risk because they were not
on welfare. One can understand the difference between current liability and
potential liability.
[19]
The
couple was challenged with respect to the number of days they lived together in
Vietnam following the wedding. Ms. Nguyet was challenged with respect to the
statement she made in her application in that she had failed to mention that
during that time he made a trip to Cambodia to visit his sick uncle. At page 326
of the Certified Tribunal Record it reads:
BY PRESIDING MEMBER (to minister’s counsel)
- She forgot he left.
She explained she listed the
beginning and end of their cohabitation together. She certainly was aware that
her husband had made a trip to Cambodia to visit his uncle. That uncle had
represented the family at the wedding.
[20]
At
page 329 of the Certified Tribunal Record, it was pointed out to Mr. Sereiboth
that Ms. Nguyet’s son is included in the sponsorship. He was asked how old he
was. The answer was that he was born in 1991:
BY MINISTER’S COUNSEL (to appellant)
[…]
Q.
No
alimony. Now you have sponsored also her son. Her son is included in the
sponsorship. How old is he? How old is he?
A.
How
old is he? He was born in ’91.
Q.
Yeah.
How old is he?
A.
(…)
Q.
It
makes him…
A.
(Inaudible)
and now.
BY PRESIDING MEMBER (to appellant)
Q.
Why
don’t you know how old he is without calculating it?
BY MINISTER’S COUNSEL (to appellant)
Q.
Yeah,
like you don’t…
BY PRESIDING MEMBER (to appellant)
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This
is your wife’s son, sir. Why do you have to calculate? You should know hold [sic]
old he is, he’s your stepson.
A. Twenty something.
[21]
Age
changes year by year. It was perfectly acceptable to state the year of birth.
Although dealing more with judicial independence, rather than impartiality, Mr.
Justice Le Dain stated in Valente v The Queen, [1985] 2 S.C.R. 673, at page
685, [1985] SCJ No 77 (QL):
Impartiality refers to a state of mind or attitude
of the tribunal in relation to the issues and the parties in a particular case.
The word "impartial" as Howland C.J.O. noted, connotes absence of
bias, actual or perceived.
[22]
Mr.
Justice Martineau thoroughly reviewed the law in Guermache v Canada (Minister of Citizenship and Immigration), 2004 FC 870, 257 FTR 272, [2004] FCJ
No 1058 (QL). The test was set out by Mr. Justice de Grandpré in Committee
for Justice and Liberty et al v National Energy Board et al, [1978] 1 SCR
369. He said at page 394:
The proper test to be applied in a matter of this
type was correctly expressed by the Court of Appeal. As already seen by the
quotation above, the apprehension of bias must be a reasonable one, held by
reasonable and right minded persons, applying themselves to the question and
obtaining thereon the required information. In the words of the Court of Appeal,
that test is “what would an informed person, viewing the matter realistically
and practically—and having thought the matter through—conclude. Would he think
that it is more likely than not that Mr. Crowe, whether consciously or
unconsciously, would not decide fairly.”
He added that the grounds of the
apprehension must be substantial and not based on a “very sensitive or
scrupulous conscience.”
[23]
For
these reasons, the judicial review shall be granted.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that
1.
The
judicial review is granted.
2.
The
matter is referred back to another member of the Immigration Appeal Division of
the Immigration and Refugee Board of Canada for re-determination.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
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