Date : 20050421
Docket : IMM-3640-04
Citation : 2005 FC 539
BETWEEN :
THU HOAI PHAM also known as
THU PHAM HOAI
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU, J.
[1] This is an application for a judicial review of a decision by a senior Immigration Officer, dated April 6, 2004. The application for permanent resident status under the Spouse or common-law partner in Canada class of Thu Hoai Pham was rejected. The officer concluded that the marriage was entered into primarily for immigration purposes.
[2] The applicant is citizen of Viet Nam. She has been in Canada since 1999 with a temporary resident permit (student visa).
[3] She married June 28, 2003. At the time of the marriage, both spouses had previously been divorced.
[4] The applicant previously married Van Mike Nguyen in April 2000, separated in May or June 2001 and divorced in March 2003. Her present husband was married in July 1999, separated around June 2001 and divorced in August 2002.
[5] In September 2003, she filed an application for immigration. She had made a previous application which was withdrawn when her former husband cancelled his sponsorship.
[6] The officer was "not satisfied that this marriage was not entered into primarily for Immigration purposes". As such, the applicant did not meet the requirements of Regulation 124(a).
[7] In his notes, the officer found there was insufficient evidence that they were co-habiting, and little details to show they were in a bona fide relationship.
[8] The officer was concerned about the timing and when they met. Hai Van Hoang and the applicant began dating when they were both still married to their previous respective spouse (February 2001).
[9] The Applicants submit the following issues:
Did the Officer err in law in rejecting the application of the Applicant?
Did the officer deprive the Applicant of fairness in his assessment of her application?
[10] The applicant refers in detail to the evidence that was before the officer and submits that the officer placed undue emphasis on the prior marriages of the applicant and her husband. It is her contention that there was no evidence to suggest that her marriage was for immigration convenience.
[11] She explains that s. 124 and s. 4 of the Regulations are relevant. In s. 4, in the English version, the word "or" should be used conjunctively.
[12] The test to exclude a sponsor under s. 4 is a two pronged test: the marriage must not be genuine and it must have been entered into primarily for acquiring a status and privilege under the Act. According to the applicant, her marriage is genuine and the officer had to consider both her intention and that of her husband. The officer should have granted an interview to the applicant.
[13] Finally, the applicant submits that she was deprived of fairness because the reasons for the decision overlooked much of the evidence submitted.
[14] In this case, the issue is whether an interview should have been granted the applicant.
[15] The decision of the Supreme Court in Baker explains, as a general principle, that an oral interview is not always required to ensure a fair hearing[1]. However, the case law on the issue of the bona fides of a marriage suggests that, under certain circumstances, an interview is the only fair way to resolve the doubts of the immigration officer[2].
[16] At the opening of the hearing, counsel for the Minister advised the court that he was satisfied that this was a "border line" case - that the officer could have resolved it either way and perhaps should have resorted to an interview or at the very least provided a letter to the applicant expressing his concerns and allowing her an opportunity to respond.
[17] In addition, as a prudent officer of the Court, he advised of amendments to the guidelines which should govern the assessment of relationships which were directed to officers and which were issued in February 2005. It was his view that they now appear to indicate a persuasive suggestion that interviews should be conducted in cases of doubt.
[18] I concur with counsel's approach. The application for judicial review is granted, the officer's decision quashed and the matter returned to a different officer for redetermination.
Rouleau J.
JUDGE
OTTAWA, Ontario
April 21, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3640-04
STYLE OF CAUSE: THU HOAI PHAM a.k.a. THU PHAM HOAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, APRIL 13, 2005
REASONS FOR ORDER: HON. MR. JUSTICE ROULEAU
DATED: April 21, 2005
Mr. Irvin H. Sherman, Q.C. FOR THE APPLICANT
Mr. Jamie Todd FOR THE RESPONDENT
SOLICITORS OF RECORD:
Martinello & Associates
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada FOR THE RESPONDENT
[1] Baker v. Canada (MCI), [1999] 2 S.C.R. 817, par.33-34
[2]Chitterman v. MCI, [2004] FC 765 (F.C.) and Blake .v Canada [2002] FCJ no. 282 (T.D.)