Date: 20020911
Docket: IMM-378-02
Neutral citation: 2002 FCT 953
Ottawa, Ontario, Wednesday the 11th day of September 2002
Present: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
HANH HUU HUYNH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
DAWSON J.
[1] Mr. Huynh says that the Appeal Division of the Immigration and Refugee Board ("Appeal Division") erred in concluding that he had not met the onus upon him to establish that his wife, Thi Thu Thuy Le, is a member of the family class.
[2] At the relevant time, subsection 4(3) of the Immigration Regulations, 1978, SOR/78-172 provided that:
| 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. |
4. (3) La catégorie des parents ne comprend pas le conjoint qui s'est marié principalement dans le but d'obtenir l'admission au Canada à titre de parent et non dans l'intention de vivre en permanence avec son conjoint. |
The Appeal Division found that Ms. Le did marry Mr. Huynh 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 Mr. Huynh in Canada.
[3] In so concluding, the Appeal Division found Mr. Huynh to be evasive and non-responsive regarding the reasons he had initially sponsored Ms. Le as his fiancée, but then withdrew that application. The Appeal Division also found Ms. Le to have changed her testimony significantly between the time of her interview with a visa officer and the appeal hearing.
[4] These conclusions, combined with the evidence as to the way the marriage was arranged, the long period of time involved from the start of the relationship to marriage, the sparse communication between Mr. Huynh and Ms. Le in between short visits by Mr. Huynh to Vietnam, led the Appeal Division to conclude that this was not a genuine marriage.
[5] On Mr. Huynh's behalf on this application it is said that the Appeal Division erred because it focussed excessively on the incredibility of his testimony when the relevant intent to be garnered was that of Ms. Le. It is also said that the Appeal Division erred in finding that Ms. Le had changed her testimony as to when she knew she was in love with Mr. Huynh.
[6] To the extent that Mr. Huynh attacks findings of fact made by the Appeal Division, those findings can only be interfered with if found to be made in a perverse or capricious manner, or without regard for the evidence. This essentially equates to the standard of review of patent unreasonableness.
[7] In arguing that insufficient weight was given to the evidence of Ms. Le about her intentions, Mr. Huynh says that the transcript of the hearing before the Appeal Division contains 57 pages of evidence of Mr. Huynh, but only 24 pages of evidence from Ms. Le. Mr. Huynh also states that the written decision of the Appeal Division contains three pages of comments on his credibility, but less than one page on that of Ms. Le.
[8] I do not find this submission persuasive for the following reasons. First, the Appeal Division in its reasons expressly directed itself to the correct test, that it was Ms. Le's intention which must be considered. Second, a purely mechanical argument comparing the number of transcript pages or pages in a decision devoted to one witness as opposed to another is not helpful. It is the substantive quality of the content of the record or written reasons which is relevant. The reasons of the Appeal Division reflect that it did consider all of the evidence of Ms. Le given at the hearing and in her interview with the visa officer. The Appeal Division did not fail to give adequate consideration to the intentions and evidence of Ms. Le. Finally, Mr. Huynh and Ms. Le were represented by counsel before the Appeal Division who could have further examined and re-examined Ms. Le. The manner in which their counsel chose to conduct the case should not give rise to a complaint that the evidence adduced at the hearing focussed too heavily on Mr. Huynh.
[9] With respect to Ms. Le's testimony as to when she first felt love for Mr. Huynh, the CAIPS notes prepared by the visa officer record the following questions and answers that were asked and given:
When were you first introduced to your sponsor? February 1992. When have you developed feelings [for] each other? She said that in 1992 [they] just met. So I repeated my question. Answered: In 1997.
[10] Before the Appeal Division Ms. Le gave the following evidence in her direct examination:
Q What were your feelings about him at this time when he returned in 1998?
A My feelings about him is I really like him, plus I already promise him since 1993 that I love him.
[11] In cross-examination she testified:
Q All right. You're saying that the marriage was for love. When did this love happen between the two of you?
A Until we get to know each other, in 1992 - since 1992, since 1993 and I - then we found out we love each other.
Q Sorry, 1992 or 1993, she said?
A From 1992 to 1993.
Q Well, ma'am, do you remember that question being put to you by the Visa officer when you met the Visa officer for your interview?
A Yes, I remember.
[...]
Q Ma'am, this question was put to you by the Visa officer:
When have you developed feelings for each other?
She said that in 1992 just met. So I repeated the question:
A In 1997.
Just translate in 1997. I suggest you told the Visa officer your feelings developed in 1997, ma'am. Isn't that more -
A No, I start to have feelings since 1993.
Q Why didn't you tell the Visa officer that then?
[...]
THE APPLICANT, LE: Maybe I - I was so nervous.
[12] The conclusion of the Appeal Division on this evidence that Ms. Le changed her testimony on the point cannot be said to the perverse, capricious or made without regard to the evidence.
[13] While the evidence before the Appeal Division may have supported a favourable decision, the decision of the Appeal Division was nonetheless made without reviewable error. On the basis of the findings of credibility and the evidence which the Appeal Division noted with respect to the way the marriage was arranged, the duration of the relationship, and the sparse communication between Mr. Huynh and Ms. Le during that time the conclusions of the Appeal Division were reasonably open to it. Despite the able submissions of counsel for Mr. Huynh, the application for judicial review is dismissed.
[14] Counsel posed no question for certification and no question is certified.
ORDER
[15] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. No question is certified.
"Eleanor R. Dawson"
_______________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-378-02
STYLE OF CAUSE: Hanh Huu Huynh v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 28, 2002
REASONS FOR ORDER AND ORDER: DAWSON J.
DATED: September 11, 2002
APPEARANCES:
Renee Miller FOR APPLICANT
Emi Pech FOR RESPONDENT
SOLICITORS OF RECORD:
Renee Miller Law Corporation FOR APPLICANT
Vancouver, British Columbia
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada