Docket: IMM-1848-13
Citation:
2014 FC 490
Ottawa, Ontario, May 22, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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XING HUO LI
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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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JUDGMENT AND REASONS
[1]
Xing Huo Li seeks judicial review of a decision
of the Immigration Appeal Division of the Immigration and Refugee Board
dismissing his appeal of the refusal of his wife’s application for permanent
residence. Mr. Li had sponsored his wife under the Family Class category.
[2]
The Board provided detailed reasons in support
of its conclusion that the marriage in question was not genuine, and had been
entered into for immigration purposes. In coming to this conclusion, the Board
identified numerous inconsistencies between Mr. Li’s testimony and the
information that had been provided by his putative wife at the visa post in Beijing.
[3]
Mr. Li asserts that he was treated unfairly
by the Board, both as a result of the Board’s refusal of an adjournment to the
Minister, and its refusal to allow his wife to testify. Mr. Li further
contends that the Board’s decision was substantively unreasonable. I do not
agree that there was any unfairness in the process before the Board, and am
satisfied that the Board’s decision was indeed reasonable. As a consequence,
the application will be dismissed.
I.
The Minister’s Request for an Adjournment
[4]
The Minister was evidently interested in
participating in Mr. Li’s appeal, but requested an adjournment of the
hearing as a result of the unavailability of a representative. The Board
refused the request, as well as a subsequent request by the Minister to reopen
the hearing in order to allow for cross-examination. The Board did, however,
allow the Minister to make written submissions following the hearing, after
reviewing a recording of the appeal.
[5]
Mr. Li argues that these events resulted in
a breach of procedural fairness, as the Minister’s representative may have
consented to the appeal if he had been present at the hearing.
[6]
There are a number of reasons why I do not
accept this argument.
[7]
The first is that it is apparent from the
transcript that Mr. Li’s counsel opposed the Minister’s request for an
adjournment before the Board. Surely if Mr. Li was of the view that the
presence of a Minster’s representative at his appeal hearing could have
assisted him in some way and was essential to the fairness of his hearing, one
would have expected him to support the Minister’s request, rather than oppose
it.
[8]
It is also not apparent how the presence of the
Minister’s representative at the appeal hearing would have assisted
Mr. Li. Nothing prevented the Minister’s representative from consenting to
having the appeal allowed before, during or after the hearing, if the
representative was of the view that it was in the interests of justice to do
so.
[9]
It is, moreover, evident from the record that
the Minister would in fact have taken a position that was adverse to
Mr. Li’s interests, had he been granted the adjournment. The written
submissions provided by the Minister’s representative after the hearing
carefully outlined the numerous problems with the stories provided by Mr Li and
his wife with respect to the circumstances surrounding their marriage.
[10]
At the end of the day, any prejudice that was suffered
as a result of the refusal of the adjournment was suffered by the Minister and
not by Mr. Li. The Minister has not taken issue with the refusal of the
adjournment, and no breach of procedural fairness has been established in this
regard by Mr. Li.
II.
The Failure of Mr. Li’s Wife to Testify
[11]
Mr. Li also submits that he was denied
procedural fairness by the Board as it refused to allow his wife to testify in
support of the appeal.
[12]
Rule 37(1) of the Immigration Appeal Division
Rules, SOR/2002-230, requires that if a party wants to call a witness at an
IAD hearing, the party must provide the Board and the other party with
the name and other information regarding the witness in writing in advance of
the hearing. It appears from the transcript of the hearing that counsel for
Mr. Li failed to comply with this requirement.
[13]
It is true that Rule 37(4) confers discretion on
the Board to allow a witness to testify, notwithstanding a failure to comply
with the notice requirements of Rule 37(1). The onus is, however, on the party
seeking the exercise of this discretion to ask for it. There was no request by
Mr. Li’s counsel that the Board exercise its discretion in this regard.
[14]
I recognize that this Court has held that there
may be obligations on Board members to facilitate the calling of witnesses in
cases where a party is self-represented: see, for example, Kamtasingh v. Canada (Minister of Citizenship and Immigration), 2010 FC 45 at para. 10, [2010] F.C.J.
No. 45. In this case, however, Mr. Li was represented by experienced
counsel (not counsel on this application), and it was incumbent on him to seek
leave of the Board to call the wife, if he felt it necessary to do so.
[15]
Mr. Li has, moreover, failed to provide an
affidavit from his wife in support of his application for judicial review. Thus
there is no evidence before the Court as to what she could possibly have said
that could have allayed the Board’s significant credibility concerns, had she
been given the opportunity to testify.
[16]
Finally, it must be recalled that Mr. Li’s
wife was afforded an opportunity to provide her version of events, and she did
so at some length in the course of her interview at the Beijing visa post. In
its decision, the Board pointed out several inconsistencies between her story
and that of Mr. Li.
[17]
While Mr. Li correctly observes that we
only have the Computer Assisted Immigration Processing System (CAIPS) notes of
that interview, and not a transcript, there is no evidence before the Court to
suggest that the CAIPS notes do not accurately reflect what was said by
Mr. Li’s wife in the course of her interview.
[18]
In these circumstances, I have not been
persuaded that there has been a breach of procedural fairness with respect to
Mr. Li’s wife’s ability to testify that would justify the setting aside of
the Board’s decision.
III.
Was the Board’s Decision Substantively
Unreasonable?
[19]
The Board identified approximately 20 different
credibility concerns that led to its de novo finding that Mr. Li’s
marriage was not genuine and had been entered into primarily
for the purpose of acquiring a privilege or status under the Immigration and
Refugee Protection Act, S.C. 2001, c. 27.
[20]
These included the fact that the marriage took
place six days after Mr. Li met his wife in person for the first time, the
wife’s lack of familiarity with Mr. Li’s previous marriages, his friends
or his life in Canada, and the fact that she had never even spoken to
Mr. Li’s son.
[21]
At the hearing of the application for judicial
review, Mr. Li only took issue with one of the Board’s credibility findings.
This was the speed with which the marriage took place and the inference drawn
by the Board that the marriage was therefore entered into for immigration
purposes.
[22]
Even if I were to accept Mr. Li’s claim
that the inference drawn by the Board was unreasonable (which I do not), the
remaining credibility concerns in this case were so overwhelming that the Board
could not reasonably have come to a different conclusion.
IV.
Conclusion
For these reasons, the application for
judicial review is dismissed. I agree with the parties that the case does not
raise a question for certification.
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