Date: 20011217
Docket: IMM-1455-01
Neutral Citation: 2001 FCT 1385
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
and
HAO CU LAO
Respondent
[1] This is an application made under section 82.1 of the Immigration Act for judicial review of the decision of the Immigration Appeal Division of the Immigration and Refugee Board ("Appeal Division") dated February 2, 2001 wherein the Appeal Division allowed Hao Cu Lao's (the respondent) appeal against the refusal of the sponsored application of Jia Sheng Huang (Mr. Huang) and his children, Yong Jiu Huang and Yong Rui Huang.
FACTS
[2] The respondent met her husband about 1975 in Saigon, while he was on a two-day mission as a private in the Vietnamese army.
[3] This was a brief encounter wherein discussion took place in regards to the topics of love and the possibility of a future together.
[4] The respondent and Mr. Huang exchanged addresses and, once Mr. Huang had returned to North Vietnam, they corresponded in writing until April 1976.
[5] The respondent was serious about this relationship and believed Mr. Huang to be serious as well, however, they lost contact for approximately twenty (20) years.
[6] During that time, Mr. Huang married and had children, but, in 1992, lost his wife in a motorcycle accident wherein he was also seriously injured.
[7] The respondent never married and immigrated to Canada in 1995.
[8] In April or May 1996, the respondent was attending a party at the home of an uncle who had assisted her some time earlier in obtaining employment at an automobile parts factory in Guelph, Ontario.
[9] At this party, she saw a picture of Mr. Huang in a photo album and recognized him, after inquiring, she learned that he is the brother of her uncle's friend.
[10] This prompted them to resume contacting each other, which they did by way of letter and telephone calls.
[11] On May 9, 1997 the respondent sponsored the application for permanent residence in Canada of Mr. Huang under the family class category of fiancé.
[12] On August 24, 1997, the respondent visited China and four (4) days later, the couple married.
[13] Mr. Huang was interviewed by Immigration Officer Janet Waterman-Zhang ("the Immigration Officer") on November 3, 1998. On the basis of this interview, she was not satisfied that Mr. Huang had married the respondent with the intention of residing with her permanently, rather that he entered into marriage for the purpose of gaining admission to Canada.
[14] In a refusal letter dated November 19, 1999, the Immigration Officer indicated five (5) reasons for her decision:
1) The circumstances of Mr. Huang and the respondent's introduction;
2) Mr. Huang's inability to demonstrate knowledge of his sponsor;
3) the fact that Mr. Huang spent very little time getting to know his wife when she visited him in China and they married;
4) the fact that there was no wedding reception;
5) the fact that Mr. Huang's parents and five (5) of his siblings were in Canada.
[15] The decision of the Immigration Officer was appealed to the Immigration Appeal Division, who found in favour of the respondent.
[16] The judicial review of the decision rendered by Appeal Division member Colin MacAdam ("Appeal Division member") dated February 2, 2001 forms the matter at hand.
ISSUE
[17] Did the Appeal Division member err in law in allowing the appeal by making findings of facts that were perverse, capricious and not based on the evidence before him, such that his decision was patently unreasonable?
ANALYSIS
[18] No, the Appeal Division member did not err in law in allowing the appeal by making findings of facts that were perverse, capricious and not based on the evidence before him, such that his decision was patently unreasonable.
Standard of review
[19] The applicant relies on the case of Tandy Electronics Ltd., supra to determine the standard of review of the Appeal Division. While the Ontario Labour Relations Board is similar to the Appeal Division in that they are both highly specialized tribunals, the question of the standard of review of the Immigration Appeal Division of the Immigration and Refugee Board has been considered in the Supreme Court of Canada decision of Boulis v. Canada (Minister of Manpower and Immigration), [1974] S.C.R. 875. In this case, Abbott J., quoting Lord MacMillan in D.R. Fraser and Co. Ltd. v.Minister of National Revenue, [1949] A.C. 24, at p.36, said:
The criteria by which the exercise of a statutory discretion must be judged have been defined in many authoritative cases, and it is well settled that if the discretion has been exercised bona fide, uninfluenced by irrelevant considerations and not arbitrarily or illegally, no court is entitled to interfere even if the court, had the discretion been theirs, might have exercised it otherwise.
[20] The court will thus not intervene lightly in the findings of the Appeal Division.
[21] In the present case, the applicant relies on apparently contradictory statements in the documentary evidence and transcript. In his reasons, the Appeal Division member refers to several of these contradictions and states that he is satisfied that the letters reasonably support the general consistency of the story. For example, the applicant argues that the fact that the respondent urges Mr. Huang to come to Canada to join his family is an indication that the marriage was entered into primarily for immigration purposes and not with the intention that the parties reside together permanently.
[22] The Appeal Division member refers to this apparent inconsistency and finds that the impugned statement in the letter is evidence only of the respondent expressing feelings of doubt about the relationship which is reasonable in light of the unusual circumstances. Furthermore, the Appeal Division member found that their intentions are made clear because many of the other letters are replete with references that reveal that the primary intention of Mr. Huang which is to come to Canada to live with his wife. At page 6 of the Appeal Division's decision, it is read:
In summary, I accept the appellant's submission that there are many reasons that people marry. I am persuaded that despite the number of family members the principal applicant has in his country, he entered the marriage with the intention to live permanently with the appellant and not primarily to gain entry to Canada as a member of the family class.
[23] In my view, having viewed the letters and considered the transcript, the findings of the Appeal Division member are reasonably supported by the evidence, and he was within the law in making these findings.
Reference to the evidence
[24] That the Appeal Division member did not refer to each apparent inconsistency or area of concern in the evidence does not render his decision unreasonable. The applicant is concerned that the Appeal Division member did not factor into his decision a statement made by Mr. Huang during his interview with the Immigration Officer to the effect that his favourite thing about his wife was that she waited 20 years to marry him as well as other statements given at the interview that may indicate his intentions or illuminate inconsistencies.
[25] In my view, the matters to which the Appeal Division member chooses to refer in his reasons as the basis for his decision shed light on his consideration of the weight of the evidence. In the Federal Court of Appeal decision of Hoang v. Canada (Minister of Employment and Immigration) [1990)] F.C.J. No. 1096 (F.C.A.), where MacGuigan J. held:
The assessment of the weight of the evidence is a proper matter for decision by the Board and is not subject to review by this Court.
[26] The fact that the Appeal Division member did not refer to certain aspects of Mr. Huang's interview with the Immigration Officer is, in my opinion, not fatal to the validity of the Appeal Division's decision.
The circumstances of Mr. Huang and the respondent's introduction
[27] The Appeal Division member first reviewed the circumstances of the introduction between the respondent and her husband. He considered the letters exchanged by the respondent and her husband both before and after the refusal by the Immigration Officer and noted two seemingly contradictory statements. When read in context, the Appeal Division member had the following to say about the letters found at page 3 of the Appeal Division's decision:
When read in the context of the many letters in evidence that both pre-date and post-date the refusal, I am persuaded to accept the appellant's submission that this letter is reflective of her mystified reaction to her good fortune at being reunited with the principal applicant after so long and finding him available and willing to marry her.
[28] Generally on the issue of the circumstances surrounding the respondent and her husband's introduction, the Appeal Division member found the story to be plausible and reasonably supported by the evidence, contrary to the findings of the Immigration Officer.
Mr. Huang's inability to demonstrate knowledge of his sponsor
[29] The second ground for refusal was that Mr. Huang did not have sufficient knowledge of the respondent at the time of his interview. On this ground, the Appeal Division found at pages 9-10 of its decision:
A close reading of the interview notes in the Record reveal that, indeed, the principal applicant did have a substantial awareness concerning how he met and ultimately re-met the applicant [...]
The fact that Mr. Huang spent very little time getting to know his wife when she visited him in China and they married
[30] The third reason for refusal involved the circumstances of the respondent's short visit to China wherein she married Mr. Huang. The Appeal Division member found that while this visit was brief, he was satisfied by the evidence that the respondent and Mr. Huang had considerable contact prior to the wedding, this is found at page 4 of the Appeal Division's decision:
I find no reason to believe that this is not a bona fide marriage simply because the appellant remained in China for only two weeks. The evidence persuades me that the appellant and the principal applicant had considerable contact in the months prior to the wedding and that their feelings for one another were augmented by their brief romantic encounter 20 years prior to that.
The fact that there was no wedding reception
[31] Furthermore, the Appeal Division member was satisfied with the explanation provided for the lack of a reception being held at the time of the wedding. In fact, testimony was given as to a small dinner for family and friends being held at the first available opportunity by the respondent and Mr. Huang. At page 4 of the Appeal Division's decision, it is read:
The appellant gave detailed and very credible testimony concerning the circumstances of the wedding. Similarly, she testified in detail about a small dinner held a few days after the wedding, with the principal applicant's friends and relatives. I note that she testified that the dinner was held on the one day of rest available each week to the principal applicant and his friends. This reasonably explains the issue of a reception being held at the time of the wedding.
Mr. Huang's parents and five (5) of his siblings were in Canada
[32] The Appeal Division member noted with concern the fifth reason for refusal by the Immigration Officer. However, at page 5 of the Appeal Division decision, the Appeal Division member wrote:
While this circumstance was cause for some concern with respect to the principal applicant's primary intentions in entering the marriage, I am satisfied by all the evidence before me that the principal applicant's primary intention in entering the marriage is to live with the appellant. The letters in evidence reveal that this issue was openly discussed by the appellant and the principal applicant, that being the applicant's family members in Canada. In one letter the appellant urges the principal applicant to come join his family in Canada.
Concocted evidence
[33] The applicant alleges that the Appeal Division member rendered a patently unreasonable decision because he failed to appreciate that the evidence submitted by the respondent may have been concocted with the purpose of deceiving immigration officials. This argument fails. In his reasons, the Appeal Division member turned his mind to the issue of whether the story was an "elaborate hoax" at page 5 of his decision, with reference to the respondent's statements in one of her letters urging Mr. Huang to join her in Canada:
I find these indicative of a budding romantic relationship consistent with their alleged circumstances at the time. To believe otherwise I would have to believe that all the letters in evidence were crafted over time in an elaborate hoax.
[34] Generally, the Appeal Division member also noted that the respondent gave very credible testimony and that he was persuaded by the "tender detail" and the authenticity of the letters adduced in evidence.
[35] It is within the ambit of the responsibility of the Appeal Division member to make all of these findings. In light of the standard of review afforded to the Appeal Division decisions, and for all of the above reasons, the applicant failed to convince me that a reviewable error was made.
[36] The question is not whether I would have rendered a different decision if I had been in the Appeal Division member's shoes. I have to determine whether the Appeal Division member has made an error that could justify this Court's intervention.
O R D E R
THEREFORE, THIS COURT ORDERS THAT:
This application for judicial review be dismissed.
Neither counsel suggested a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 17, 2001