Date: 20031010
Docket: IMM-5945-02
BETWEEN:
QUOC HUNG LY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
von FINCKENSTEIN J:
[1] This is an application for judicial review of the decision of the Appeals Division of the Immigration and Refugee Board (the "Board") in which the Board rejected the applicant's appeal of a visa officer's decision to refuse to grant his wife, Ms. Thi Kim Trang Huynh, permanent residence status in Canada. The Board rejected the appeal on the basis that Ms. Huynh was an excluded member of the Family Class, pursuant to section 4(3) of the Immigration Regulations.
BACKGROUND
[2] The applicant is a 26 year-old Canadian citizen of Vietnamese descent. In December 1999, he was introduced to Ms. Huynh over the telephone by her aunt who lives in Canada. The couple corresponded by telephone for several months, during which time they discussed marriage. They met in May 2000 and made plans to get married. They were married in Camau Province, Vietnam on July 5, 2000.
[3] After the wedding, the applicant returned to Canada and applied to sponsor his wife as a permanent resident. While they were apart, the couple exchanged letters, copies of which were provided to the Court. In addition, the applicant has testified that he called Ms. Huynh regularly using her aunt's telephone. The applicant sent money to his wife for her support.
[4] On October 11, 2002, a visa officer refused the applicant's application to sponsor Ms. Huynh on the basis that she had entered into the marriage for the primary purpose of gaining admission into Canada and did not intend to reside permanently with the applicant.
DECISION UNDER REVIEW
[5] In its reasons, the Board found that:
- inconsistencies existed in the written statements of Ms. Huynh and the testimony of her aunt and the applicant,
- documentary evidence provided by the couple of their ongoing relationship was unreliable;
- the couple had not articulated "any substantial plans" for the future;
- Ms. Huynh was "not generally knowledgeable" about the applicant's life in Canada; and
- "no satisfactory explanation" had been provided for the apparent haste with which the marriage was arranged.
[6] In light of these findings, the Board concluded that the applicant had failed to provide sufficient "credible and reliable evidence" of a bona fide marriage. It found, on a balance of convenience, that the couple had entered into a marriage of convenience.
RELEVANT LEGISLATION
[7] Section 4(3) of the Immigration Regulations, SOR\78-172 reads as follows:
4(3) The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.
ISSUE
[8] The central issue raised by the applicant is whether the Board misinterpreted or misapprehended evidence before it, thereby committing a reviewable error.
ANALYSIS
[9] The respondent raises two preliminary procedural questions based upon the fact that the only affidavit filed in support of this application was that of the applicant's former solicitor: first, what, if any, significance, should be given to the fact that the applicant failed to file his own affidavit in support of this judicial review and second, should the affidavit of the former solicitor be struck from the record? A copy of the affidavit is attached as Schedule A to these reasons.
[10] Except on motions, affidavits shall be confined to facts within the personal knowledge of the deponent: Rule 81(1), Federal Court Rules, 1998. The affidavit must be free from argumentative materials and the deponent must not interpret evidence previously considered by a tribunal or draw legal conclusions (Deigan v. Canada (A.G.) (1996), 206 N.R. 195 (Fed. C.A.); West Region Tribal Council v. Booth (1992), 55 F.T.R. 28; First Green Park Pty. Ltd. v. Canada (A.G.), [1997] 2 F.C. 845). If an affidavit does not meet these requirements, the application can only succeed if an error is apparent on the face of the record (Turcinovica v. Canada (M.C.I.), 2002 F.C.T. 164).
[11] Only the first paragraph and the first half of the second paragraph were within the deponent's personal knowledge, the rest is either based on information and belief or is argumentative. Accordingly, everything will be struck from the record except the following passages:
1. I was retained to represent both the applicant Quoc Hung Ly - husband and his wife the appellant - Thi Kim Trang.
2. I found no difficulty in representing this appellant and applicant as I found them truthful.
[12] Particularly troubling is paragraph 10 of the former solicitor's affidavit in which he made the allegation that the Board member, whose decision is being reviewed in this application, was responsible for a previous appellant's suicide. It states:
10. The same panel member's negative decision in the matter of Khac Lo Dinh (Imm-5742-02 ) contributed to the appellant's suicide in late 2002 and this matter is being pursued with the Minister.
This kind of cavalier accusation has no business in an affidavit, let alone an affidavit by a senior member of the Immigration Bar. The Court takes grave exception to unsubstantiated and irrelevant allegations of this kind. If a genuine concern exists, it should be addressed through the proper channels.
[13] Having dispensed with the procedural issues, let us now turn to the applicant's argument. A decision as to whether or not a marriage is bona fide is a finding of fact and is reviewable on the standard of patent unreasonableness (Grewal v. Canada (M.C.I.) [2003] F.C.J. No. 1223). The role of the Court is to ensure that the finding was not made perversely, capriciously or without regard to the evidence (Aguebor v. Canada (M.E.I.), [993] F.C.J. No. 732 (C.A.)).
[14] In its reasons, the Board placed significant weight upon its conclusion that "no satisfactory explanation" had been provided as to why the couple were engaged for only a few weeks. The applicant has urged me to find that this constitutes a reviewable error for two reasons. First, he submitted that he proposed to Ms. Huynh several months before the wedding. He testified that her first response was that she would need to ask her parents, and submitted that, within his culture, this constituted an unofficial acceptance of the proposal. Therefore, he argues that the engagement was several months rather than several weeks long. Second, the applicant submitted that the Board, in finding that the marriage was arranged in haste, failed to consider the applicant's testimony that the wedding date had been chosen by other family members in order to comply with the family's cultural and religious beliefs.
[15] The Board was not obliged to accept that the applicant's testimony was an accurate portrayal of the cultural background of his engagement and marriage. However, as there is no suggestion in the reasons that the Board found the applicant not to be a credible witness, his explanation constituted relevant evidence which the Board was obliged to consider. If this evidence was to be rejected, the Board was bound to outline its reasons for doing so in clear and unmistakable terms (Hilo v. Canada (M.E.I.) (1992), 15 Imm. L.R. (2d) 199 (F.C.A.).
[16] There was no indication in the reasons that the Board had considered the applicant's testimony as to the cultural circumstances of his engagement and marriage, nor was there an explanation as to why this testimony had been rejected. As such, the Board committed a reviewable error.
[17] In light of my conclusion, there is no need for me to address the other findings by the Board which were challenged in the application nor to consider the certification request made by counsel for the applicant.
[18] The application for judicial review shall be allowed.
"K. von Finckenstein"
JUDGE
Ottawa, Ontario
October 10, 2003
SCHEDULE "A"
Court File No.:
IN THE FEDERAL COURT OF CANADA
TRIAL DIVISION
BETWEEN
QUOC HUNG LY
Applicant
-and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AFFIDAVIT OF CECIL L. ROTENBERG
I, Cecil L. Rotenberg, of the City of Toronto, in the Province of Ontario, MAKE OATH AND SAY AS FOLLOWS:
1. I was retained to represent both the applicant Quoc Hugn Ly - husband and his wife the appellant - Thi Kim Trang.
2. I found no difficulty in representing this appellant and applicant as I found them truthful and both were in my opinion genuinely married.
3. I take issue with the substance of the statement at paragraph 5 of the decision as the applicant was not called as a witness as it was late in the day - the applicant was available and ready to testify but due to the lateness of the day did not testify through no fault of her own.
4. I take issue with the substance of paragraph 8 of the member's decision in that there is no discrepancy in the wife stating that the aunt made the introduction - what happened before the initial call from the aunt was that the husband first saw a picture of her in a photo album before asking the wife's aunt to call her. The wife answered correctly that the aunt called her to introduce him.
5. I take issue with the substance of paragraph 9 of the member's decision with
respect to the alleged haste of the marriage - in that when couples live far apart - where the mode of communication is by phone or letter only that either party would benefit from a long engagement. In fat the proposal was in April 2002, the applicant was in Vietnam as of May 2002 and the wedding was not until July 5, 2002.
6. I take issue with the concept of paragraph 10 of the member's decision in that he requires a single photograph of all members who attended the wedding.
7. I take issue with the substance of paragraph 12 of the member's decision in his casual and categorical dismissal of the husband sending money to his wife as merely an exchange of monies between people. This demonstrates a bias especially since he did not take issue with the credibility of the applicant.
8. I believe this member is displaying a reasonable apprehension of bias towards appellants of Vietnamese background and imposing a westernized standard of the norm for how relationships develop to assess whether such a marriage is genuine.
9. I take issue with the substance of paragraph 14 of the member's decision in that I lead evidence in the applicant's future settlement plans - thus he is wrong in his finding.
10. The same panel member's negative decision in the matter of Khac Lo Dinh Imm-5742-02 ) contributed to the appellant's suicide in late 2002 and this matter is being pursued with the Minister.
11. There are more examples of biases exhibited by this member which will be revealed in the transcript.
12. After reading the decision of panel member Neron, I believe he fell into the error of counting the inconsistencies, as opposed to viewing the evidence in its entirety of both branches of Horbas, [1985] 2 F.C. 359.
13. I am making this affidavit to assist the parties because the panel, in my submission, made a technical error in the manner in which he viewed the evidence.
14. I am taking my lead from the decision of Mr. Justice Campbell in the Trinh case, [2002] F.C.J. No. 728, where it seems that the panel member fell into the same error in counting the inconsistencies rather than viewing the evidence as a whole and looking at the inferences there from. Now produced and marked exhibit "A" is the decision of Campbell J. in Trinh. Now produced and marked exhibit "B" is the original panel decision of the Appeal Board in Trinh, [2001 ] I.A.D.D. No. 524.
SWORN before me at the )
City of Toronto, in the ) "Original signed by"
Province of Ontario ) _____________________
this ~- day of January , 2003. ) CECIL L. ROTENBERG
A Commissioner etc.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5945-02
STYLE OF CAUSE: QUOC HUNG LY
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 7, 2003
REASONS FOR ORDER : von FINCKENSTEIN J.
DATED: OCTOBER 10, 2003
APPEARANCES:
Ms. Mary Lam FOR APPLICANT
Ms. Marianne Zoric FOR RESPONDENT
SOLICITORS OF RECORD:
Mary Lam FOR APPLICANT
74 Victoria Street, Suite 303
Toronto, ON
M5C 2A5
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada