Docket: IMM-2729-01
Neutral citation: 2002 FCT 561
CALGARY, Alberta, Tuesday, the 14th day of May, 2002.
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
THUAN PHUOC TRINH
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL, J.:
[1] In the present case, the Appeal Division of the Immigration and Refugee Board (AD) rejected an appeal of a visa officer's refusal to grant the Applicant husband's sponsorship application of his wife who lives in Viet Nam. The refusal and rejection was based on a finding that the marriage was not bona fide.
[2] he Appeal Division correctly found that the test to be applied under s. 4(3) of the Immigration Act Regulations, 1978 is whether the marriage was entered into primarily for the purpose of gaining the wife's admission to Canada as a member of the family class and not with the intention on her part of residing permanently with the Applicant.
[3] With respect to the first leg of the test, the AD found material discrepancies within the evidence of the Applicant and his spouse and, on this basis, made the determination that the marriage was entered into for a wrongful purpose. My concern does not lie with respect to this determination, but with its use on the second leg of the test.
[4] The AD found that a determination on the second leg can be inferred from the evidence on the issues considered on the first leg of the test. The Applicant argues that, while such an inference can be made, nevertheless, the determination on both legs of the test must be made with regard to the totality of the evidence. I agree with this submission. In the present case ample evidence was supplied to the AD of significant contact between the husband and wife both before and after the visa officer's refusal. It is apparent from the AD's decision that no meaningful consideration was given to this evidence. In my opinion, this failure constitutes a reviewable error.
ORDER
[5] Accordingly, I set aside the Appeal Division's decision referred to this matter to a different panel for redetermination.
"Douglas R. Campbell"
JUDGE
Calgary, Alberta
May 14, 2002
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
REASONS FOR_ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2729-01
STYLE OF CAUSE: THUAN PHUOC TRINH v. THE MINISTER
OF CITIZENSHIP & IMMIGRATION
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: May 14, 2002
REASONS FOR ORDER & ORDER : CAMPBELL, J.
DATED: May 14, 2002
APPEARANCES:
Mrs. Roxanne Haniff-Darwent FOR APPLICANT
Mr. W. Brad Hardstaff FOR RESPONDENT
SOLICITORS OF RECORD:
Mrs. Roxanne Haniff-Darwent
Calgary, Alberta FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT