Docket: IMM-3159-15
Citation:
2016 FC 330
Ottawa, Ontario, March 18, 2016
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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LOAN THI THANH
LE
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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
UPON hearing this application for judicial review at Toronto, Ontario,
on February 11, 2016;
AND UPON reviewing the
materials filed with the Court, including the certified tribunal record, and
hearing the arguments and submissions of the parties;
AND UPON reserving a
decision with respect to this matter;
AND UPON concluding that this
application for judicial review brought pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] should be denied for
the following reasons:
[1]
The Applicant, Loan Thi Tranh Le, is a dual
Vietnamese-Canadian citizen who married Trung Van Vu on December 19, 2009, in
Vietnam. She first met Mr. Vu in February 2006, when she was visiting her
family in Vietnam. They became friends, and the Applicant visited Vietnam
regularly to meet with Mr. Vu; they began a romantic relationship in late 2008
or early 2009. After they were married in December 2009, the Applicant
submitted a sponsorship application for Mr. Vu in April 2010. Mr. Vu was
interviewed in Hanoi on July 20, 2011, and on August 10, 2011, the application
was refused on the basis that the marriage was not genuine. The Applicant
appealed this refusal to the Immigration Appeal Division [IAD] of the
Immigration and Refugee Board of Canada. On June 16, 2015, following 3 days of
hearings, the IAD dismissed the appeal.
[2]
The IAD defined the issue on the appeal as
whether Mr. Vu is excluded from membership in the family class pursuant to
subsection 4(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227, on the basis that the marriage was entered into primarily for the
purpose of obtaining status or privilege under the Act and is not
genuine. In assessing the genuineness of the marriage, the IAD looked to
numerous factors, including how the relationship developed, its length and the
parties’ intent. The IAD concluded that there was insufficient and inconsistent
evidence about the relationship between 2006 until the marriage in December
2009, stating that the Applicant and Mr. Vu provided vague, imprecise testimony
with numerous inconsistencies in their respective testimonies both internally
and vis-à-vis each other. It further found that some of their oral evidence was
implausible, and that there was no satisfactory explanation about the
inconsistent evidence from either the Applicant or Mr. Vu.
[3]
The parties agree, as does the Court, that the
appropriate standard for judicial review of the IAD’s decision is one of
reasonableness. Accordingly, the Court should not interfere if the IAD's decision
is intelligible, transparent, justifiable, and defensible in respect of the
facts and the law: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para 47. Those criteria are met if “the reasons
allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes”: Newfoundland and Labrador Nurses' Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at para 16. It
is not up to this Court to reweigh the evidence before the IAD, and it is not
this Court's function to substitute its own view of a preferable outcome: Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at
paras 59, 61.
[4]
In view of this standard for review, the central
question to address therefore is: was the IAD’s determination that the
Applicant’s marriage was not genuine reasonable?
[5]
The IAD’s decision in this case is reasonable.
The numerous inconsistencies found by the IAD, notably around what happened the
day the Applicant first met Mr. Vu, when their romantic relationship started,
and when the marriage proposal occurred, are not, as argued by the Applicant,
inconsequential or extraneous. On the contrary, because of these and other
inconsistencies in the evidence, the IAD reasonably found that the Applicant’s
and Mr. Vu’s testimony was not credible, and therefore that the marriage not to
be genuine. It is well-established that deference is to be afforded to the
findings of a tribunal such as the IAD in matters of credibility.
[6]
Moreover, the IAD did not, as the Applicant
asserts, conduct a microscopic examination of facts peripheral to the issue of
the genuineness of the marriage and then use inconsistencies in the Applicant’s
and Mr. Vu’s testimony to make unreasonable findings about the genuineness of
their relationship. While the IAD did make negative findings with respect to a
peripheral issue concerning the Applicant’s contact with her cousin in Vietnam,
the other negative findings, such as those relating to the genesis of the
relationship, were clearly supported by the evidence and related to central
aspects of the genuineness of the marriage. Furthermore, the IAD clearly
considered and reasonably assessed the limited evidence before it of the
financial interdependence between the Applicant and Mr. Vu.
[7]
In this case, the IAD's decision is
intelligible, transparent, justifiable, and defensible in respect of the facts
and the law. The IAD’s reasons permit the Court to understand why it made its
decision and its determination that the Applicant’s marriage with Mr. Vu is not
genuine is one well within the range of acceptable outcomes.
[8]
The Applicant’s application for judicial review
is therefore dismissed. Neither party suggested a question for certification;
so, no such question is certified.
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