IMM-1533-96
B E T W E E N:
VAN ANH NGUYEN
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CAMPBELL J.
This is an application for judicial review of a decision of the Appeal Division of the Immigration and Refugee Board (the Appeal Division) dated April 15, 1996. In that decision, the Appeal Division dismissed Mr. Nguyen's appeal against a removal order made against him.
I consider the primary issue to be whether the Appeal Division erred in its finding of credibility, and what impact such an error might have on the decision reached.
Mr. Nguyen is a 31 year old Vietnamese man. He is legally married and his wife still resides in Vietnam. In June 1990, he came to Canada as a dependant of his mother who was the principal applicant under his sister's sponsorship. At that time, in order to qualify as a "dependant", the individual seeking permanent residency in Canada was required to be "single" and "never married". At the time of landing, Mr. Nguyen stated that this was the case.
However, in February 1991, Mr. Nguyen submitted an application to sponsor Thi Luan Nguyen for admission into Canada as his spouse, whom he stated he married in October 1989. As a result of this application, at an inquiry held on March 10, 1994 in Calgary, an adjudicator held that Mr. Nguyen was granted landing as a single, unmarried dependant of his mother when in fact he was married at the time of landing. Therefore, since Mr. Nguyen was landed by a misrepresentation of a material fact, on March 10, 1994 he was ordered deported.
The Appeal Division dismissed Mr. Nguyen's appeal from that order. At the hearing, counsel for Mr. Nguyen conceded that the deportation order was valid in law. As such, the only issue that remained outstanding was whether, under the circumstances, Mr. Nguyen should be removed from Canada under s.70(1)(b) of the Immigration Act which reads as follows:
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70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely, |
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(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
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In meeting the requirements of s.70(1)(b), the Appeal Division made this statement:
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The Appeal Division, in considering an appeal based on all the circumstances of the case has a very delicate task in balancing its responsibility to maintain and protect the health, safety and good order of Canadian society against all the factors in favour of the appellant. In each case, the Appeal Division looks to the same general areas to determine if having regard to all the circumstances of the case, the person should not be removed from Canada. These factors include the circumstances surrounding the failure to meet the conditions of admissibility which led to the deportation order. The Appeal Division looks to the length of time spent in Canada and the degree to which the appellant is established, family in Canada and the dislocation to that family that deportation of the appellant would cause, and the hardship the appellant is likely to suffer if he or she is removed from Canada.1 |
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It is very clear on the face of the record that the Appeal Division did consider Mr. Nguyen's "circumstances" as required by s.70(1)(b), and in particular, made the following findings with respect to his personal situation:
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When the appellant was ordered deported on March 10, 1994, he had lived in Canada for less than four years. It is his testimony that he has worked all of the time since he has been in Canada. He has worked for two employers in Canada, initially with Cargill Foods in High River, Alberta, and most recently, for the last six months or so, with Lucerne Foods as a meat cutter. The appellant testified that in the last two years or so he has started a small business where he sets up music for weddings and other functions on weekends, and by virtue of that he has employed one additional non-family member. Despite his work record, the appellant did not provide any evidence of a significant accumulation of financial assets. He is renting a business suite with his sister. The Appeal Division finds that the appellant is established to a slight degree in Canada. |
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The Appeal Division finds it significant that no one from the community or his family testified on his behalf at the hearing. In the event the appellant is removed from Canada, there is no evidence of any emotional dislocation to anyone in Canada. Further, there is no evidence before the Appeal Division to show that anyone in Canada will suffer any financial hardship if the appellant is removed from Canada. The Appeal Division determined that in the circumstances it was appropriate to remove him. Factors including the length of his stay in Canada, emotional ties to the community and any hardship in returning to Vietnam. Based on the evidence before it, the Appeal Division determined that the Applicant did not sufficiently establish grounds to show why he should not be removed from Canada. |
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With respect to the question of hardship that would be faced by the appellant if he were required to leave Canada and return to his country of nationality, it does not appear that the appellant would suffer great hardship. He is able to travel freely both to and from Vietnam. He is young and resourceful, and will be able to establish himself. His wife and his two sisters with their families are in Vietnam.2 |
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With respect to the circumstances surrounding the failure to meet the conditions of admission, the Appeal Division made the following finding regarding Mr. Nguyen's testimony in the hearing before it:
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The Appeal Division did not find the appellant a credible and trustworthy witness, especially when he was answering questions about his marriage in Vietnam before coming to Canada on June 13, 1990.3 |
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With respect to the documentary evidence which was filed to sponsor his wife, and in particular with respect to the marriage certificate which Mr. Nguyen produced at that time, the Board made the following finding:
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In light of this documentary evidence, the Appeal Division does not find the appellant's testimony, that he was not married to Thi Luan Nguyen on October 23, 1989, and that he was only engaged at that time, credible.4 |
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The principles that decision makers must listen to the testimony in its entirety with an objective and open mind, and testimony given under oath is presumed to be true unless there are valid reasons to doubt its truthfulness, are fundamental to proper findings of credibility.5 These principles are important because all witnesses are entitled to start from a position where they are respected and their evidence is believed.
On the face of the record there are no reasons stated for the credibility findings made. Accordingly, I find that the Board erred in not explaining the reasons for finding that Mr. Nguyen was not credible. But my concerns about the findings are more than just the failure to give reasons. I have considered the evidence upon which these findings were made, and cannot see how on its fair interpretation, the Appeal Division arrived at its conclusions.
A reading of the transcript of the hearing shows that a large part of the proceeding was taken up with the issue that Mr. Nguyen misrepresented his marital status when he was landed in 1990. The following passage from the transcript shows that on this issue some conclusions were reached by agreement between Mr. Tanack, counsel for the respondent, and Mr. Lynas, counsel for Mr. Nguyen:
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MR. TANACK: Okay. I think what happened, Mr. Chairman, is my friend -- I think you'll likely agree, the application was filled out in Vietnam, it was mailed in on July of 1989, date-stamped in Vietnam, then what happens normally is the visa is issued and then an individual is given an envelope to give to the authorities in the airport. At the port of entry they would swear or give an oath of their application at that time, which would have been the 13th of June, 1990, they would be landed, and then the port of entry, in this case the Vancouver International Airport Immigration authority would then return the application to the Vietnamese authority so they likely received it back on the 31st of August, 1990. |
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PRESIDING MEMBER: Okay. So let's say, then, from the face of it, when he submitted his application, let's say July the 4th, 1989 -- |
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PRESIDING MEMBER: -- he was unmarried? |
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PRESIDING MEMBER: Okay. And what, then -- between that point and time of landing he got married? |
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MR. TANACK: Yes. He got married. That's correct. |
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PRESIDING MEMBER: And then the next fact is that at the port of entry he did not tell them that he was married. |
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MR. TANACK: That's correct. |
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PRESIDING MEMBER: Okay. And his evidence is somewhere that his mother or sister advised him not to disclose that. Was it a fact? |
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MR. TANACK: Well, they advised him not to disclose something, but I don't think I was ever able to get an answer to that. |
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MR. LYNAS: I believe that my client's testimony is -- |
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PRESIDING MEMBER: Well -- and moreover, Counsel, if I am right, then probably we spent quite a good deal of time on this. I don't think, Mr. Lynas, you are challenging the validity of deportation order, are you? |
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PRESIDING MEMBER: Okay. So circumstances are there that he misrepresented. |
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From this evidence, I find that Mr. Nguyen's version of events, while difficult to follow, is consistent throughout. However, Mr. Nguyen's evidence certainly does raise an issue about the meaning of the word "marriage", both in his mind and in Vietnamese custom. On this issue, the following passages, which refer to Mr. Nguyen's attempt to sponsor his wife to Canada in 1991, are important:
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MR. LYNAS: Yes. Did you file a sponsorship at the Canada Immigration Centre, Calgary? |
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Q For Nguyen, N-g-u-y-e-n, T-h-i, L-u-a-n? |
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Q And who is that person? |
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Q Okay. Now, on that form you indicated that her relationship to you was "spouse", and that her marital status was "married"? |
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Q Now, you have called her your girlfriend. Can you explain to me the discrepancy? |
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A In reality, in Vietnam, I did get engaged to her, but we didn't have a marriage. |
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Q So tell me what happened exactly in Vietnam as far as engagement? |
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INTERPRETER: Before the engagement? |
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MR. LYNAS: No, with respect to the engagement. |
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Q What ceremonies did you go through? |
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A It's just like engagement, like two family talk to each other. |
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Q Why did you indicate on your form, then, that she was your spouse and that her marital status was "married"? |
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A I was afraid that she cannot come in, so before I left I went to official and signed a marriage contract. |
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Q Okay. Now, was that a marriage contract or was that a certificate of marriage that was completed? |
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A Certificate of marriage. |
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Q Okay. And did you provide that to Immigration at the time you put in your sponsorship? |
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A When I had an interview date in Vietnam I showed them that paper. |
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PRESIDING MEMBER: The question was, Counsel -- I'm getting confused here. Answer the question, please, which is being asked. |
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MR. LYNAS: Okay. The last question I asked was, "At the time you submitted your sponsorship, did you provide the certificate of marriage?" |
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EXAMINATION BY MR. TANACK: |
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Q Well, Mr. Nguyen, after hearing all your evidence, I still can't tell, do you consider yourself married, or what are you, sir? |
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A In reality, under the eyes of the Vietnamese in Vietnam I am not married, because I haven't got a marriage -- wedding. |
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Q Sorry, under the eyes of what? |
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INTERPRETER: "Vietnamese in Vietnam." |
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Q In Vietnam you say you're unmarried, is that the case, sir? |
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Q Okay. Well, how about in Canada? Are you married or unmarried? |
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A I just wanted to make sure that I can sponsor her, so I have this marriage certificate saying I'm married. |
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PRESIDING MEMBER: Sir, answer the questions which are asked. Don't try to go around, okay? Then I get confused. |
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From these passages it is clear that Mr. Nguyen sees a distinct difference between a marriage according to Vietnamese custom and the "marriage" that he underwent by simply applying. It is clear, however, that he understood when he landed that he was legally married. It is apparent that the difference was hard to extract during the hearing, which lead to some frustration on the part of all concerned.
Regarding what transpired upon landing in 1990, Mr. Nguyen testified as follows:
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Q You have told us earlier that you became a landed immigrant when you arrived in Canada with your mother and two sisters. What date was that? |
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A By that time I just told them that I -- I wasn't married, and she just fiancee. |
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Q Okay. So at the time when you came in through Vancouver, were you married or not married? |
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A In Vancouver, the Interpreter, she is a Chinese one, she told me that in this case, it takes very long, so I just told them that I am not married, she's just a fiancee. |
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PRESIDING MEMBER: Now, just a minute. Your Counsel is asking a question: "When you landed here on 13th of June, 1990, were you married at that time or not?" Was that your question, Counsel? |
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MR. LYNAS: Yes, that's the correct -- I said, "Were you married or unmarried?" |
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PRESIDING MEMBER: Yeah. On that day were you married or unmarried? Answer that question. |
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PRESIDING MEMBER: What did he say? |
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INTERPRETER: "Unmarried." |
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PRESIDING MEMBER: Unmarried? Okay. |
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Q Sir, and you indicated you had a conversation with an Immigration officer with the aid of an interpreter, is that correct? |
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Q Okay. And what was the nature of that conversation? |
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A He asked me if I am single or married. |
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A The first time I admit that I'm not married. |
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A That on paper I said that I -- I -- I am married. |
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Q At that same interview or at a later time? |
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On the evidence above quoted, I find that Mr. Nguyen was very forthright about his actions in misrepresenting his marriage upon landing and upon maintaining his marriage upon applying to sponsor his wife. He was also consistent in explaining what he meant by "marriage".
I am concerned that the Appeal Division's assessment of Mr. Nguyen's credibility is based on some misunderstanding of the evidence, which is entirely possible, because it was given through an interpreter and required an understanding of Vietnamese law and custom to put it in context in order to properly assess its weight. While the credibility finding is most relevant to the factor found by the Appeal Board of "the circumstances surrounding the failure to meet the conditions of admissibility", I am also concerned that it has had an unfair impact on the Appeal Division's thinking about other factors to be considered.
The only way that the Appeal Division could dispel this concern is to have stated precisely why it did not believe Mr. Nguyen, which it did not do. As a result, I find that the failure to do so is a reviewable error which has a serious impact upon the perception of the fairness of the entire decision.
Accordingly, I set aside the decision of the Appeal Division and refer the matter back to a differently constituted panel for reconsideration of Mr. Nguyen's circumstances under s.70(1)(b) of the Immigration Act. However, I also direct that in so doing, the panel is not to attempt to make findings on the circumstances of Mr. Nguyen's statements upon landing in Canada, his statements made upon his attempt to sponsor his wife, and his credibility respecting these issues, but that my findings italicized above be accepted in its deliberations.
Douglas R. Campbell
Judge
OTTAWA
April 9, 1997
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1Applicant's Record, p. 18.
2Ibid., pp. 20 - 21.
3Ibid., p. 19.
4Ibid., p. 20.
5see Okyere-Akosah v. The Minister of Employment and Immigration, (1992) 157 N.R. 386, Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302, Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 and Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236.
6Transcript of the Immigration Appeal Division Hearing, August 28, 1995, pp. 22 - 23.
7Ibid., pp. 6 - 7.
8Ibid., p. 12.
9Ibid., p. 8 - 9.
STYLE OF CAUSE: VAN ANH NGUYEN v.
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE CAMPBELL DATED: APRIL 9, 1997
CHARLES R. DARWENT FOR THE APPLICANT
CHARLES R. DARWENT FOR THE APPLICANT CALGARY, ALBERTA
MR. GEORGE THOMSON FOR THE RESPONDENT DEPUTY ATTORNEY GENERAL OF CANADA