Date: 20150817
Docket: IMM-4834-14
Citation: 2015 FC 973
Ottawa, Ontario,
August 17, 2015
PRESENT:
The Honourable Mr. Justice Fothergill
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BETWEEN:
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Applicant
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and
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THE MINISTER OF IMMIGRATION AND CITIZENSHIP
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Respondent
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I.
Introduction
[1]
Vinh Quoc Tang has brought an application for
judicial review pursuant to s 72 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [the IRPA]. Mr. Tang challenges a decision of the
Immigration Appeal Division of the Immigration and Refugee Board [the IAD]. The
IAD dismissed Mr. Tang’s appeal of a decision of a visa officer to deny his
spouse, Thi Thu Ba Cao, a permanent resident visa.
[2]
The IAD determined that Mr. Tang’s and Ms. Cao’s
marriage was never registered with the civilian authorities in Vietnam, and they were therefore not married under Vietnamese law. As a result, Ms. Cao was
found not to be a member of the family class under s 117(1)(a) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [the Regulations] for the purposes
of immigration to Canada. The IAD also determined that the couple was not in a
conjugal relationship. The appeal was dismissed by the IAD for lack of
jurisdiction.
[3]
For the reasons that follow, I have concluded
that the IAD respected Mr. Tang’s right to procedural fairness and reasonably
concluded that his marriage to Ms. Cao was not valid under the laws of Vietnam. It also reasonably concluded that he was not in a conjugal relationship with Ms.
Cao. The application for judicial review is therefore dismissed.
II.
Background
[4]
Mr. Tang is 57 years old. He was born in Vietnam and is a Canadian citizen. Mr. Tang resides in Canada. Ms. Cao is 41 years old. She
is a citizen of Vietnam and resides in that country. On November 21, 2000, Mr.
Tang and Ms. Cao participated in a traditional Buddhist marriage ceremony in Vietnam.
[5]
Following the marriage ceremony, Mr. Tang and Ms.
Cao attempted to register their marriage at an office of the local government,
known as the People’s Committee, in Vietnam. Mr. Tang and Ms. Cao were informed
that they would have to return in ten days’ time to receive their marriage
certificate. However, Mr. Tang returned to Canada within the 10-day period. Ms.
Cao appeared at the office of the People’s Committee on her own but was told that
the marriage certificate could be released only in the presence of both
parties.
[6]
Mr. Tang did not return to Vietnam until 2005. Ms. Cao then contacted the office of the People’s Committee and enquired
about obtaining the couple’s marriage certificate. She was told that the
marriage certificate could not be located.
[7]
In 2008, Mr. Tang’s father-in-law submitted an “Application for Confirmation” to the office of the People’s Committee to affirm that the couple
had in fact been married. The office of the People’s Committee affixed a seal
to the document confirming that a wedding ceremony had taken place on November
21, 2000.
[8]
In 2010, Mr. Tang applied to the High Commission
of Canada in Singapore to sponsor Ms. Cao for a Canadian permanent resident
visa. The visa officer determined that the couple was not in a bona fide
marriage and refused the application pursuant to s 4(1) of the Regulations. Mr.
Tang filed a Notice of Appeal with the IAD on May 20, 2011.
[9]
Before the appeal was heard, the IAD identified
the validity of the marriage as a threshold issue affecting its jurisdiction. In
correspondence dated August 22, 2013, the IAD asked Mr. Tang to make written
submissions regarding the validity of the marriage under Vietnamese law, and to
demonstrate that the 2008 “Application
for Confirmation” was sufficient to prove the
existence of a legal civil marriage in Vietnam.
[10]
On November 19, 2013, Mr. Tang made written
submissions to the IAD regarding the “Application for Confirmation” that
had been endorsed by the People’s Committee. This included an affidavit from
Mr. Tang and a statement by Ms. Cao explaining the circumstances surrounding
their marriage and their inability to obtain a marriage certificate.
[11]
In correspondence dated January 29, 2014, the
IAD disclosed that a search of the Internet had revealed Decree No. 184-CP [the
Decree], a statutory document governing nuptials between Vietnamese citizens
and foreigners. According to Article 1 of the Decree, the statutory document “defines the procedures for registration and
recognition of marriage”. Article 10 of the
Decree stipulates five procedural steps that must be completed for a marriage
to be properly registered, culminating in the requirement that both parties
appear and collect the marriage certificate from the office of the People’s
Committee. The IAD invited Mr. Tang and the Minister of Citizenship and
Immigration [the Minister] to make submissions regarding the content of the Decree
and its application to the appeal.
[12]
Mr. Tang conceded the application of the Decree
and acknowledged that the couple’s inability to collect the marriage
certificate from the office of the People’s Committee was a procedural defect.
He nevertheless maintained that this did not affect the validity of the
marriage. In support of his position, Mr. Tang submitted a legal opinion from Yehuda
Levinson, a Canadian lawyer with expertise in the validity of foreign
marriages.
[13]
If the IAD was not prepared to accept the
validity of the marriage, Mr. Tang asked that it exercise its discretion to find
that the couple was in a conjugal relationship and maintain jurisdiction to
hear the appeal on this basis.
[14]
The Minister agreed that the Decree applied and took
the position that Mr. Tang’s and Ms. Cao’s failure to receive the marriage
certificate meant that the procedural requirements for registering the marriage
had never been met. The Minister also argued that the additional documents provided
by Mr. Tang, including Mr. Levinson’s legal opinion, had no probative value.
[15]
On May 14, 2014, the IAD dismissed the appeal
for lack of jurisdiction. Mr. Tang filed an application for leave and for
judicial review on June 16, 2014, and an amended application for leave and for
judicial review on July 16, 2014. Leave was granted by this Court on February
27, 2015.
III.
The IAD’s Decision
[16]
The threshold issue before the IAD was whether
the marriage between Mr. Tang and Ms. Cao was valid for the purposes of
immigration to Canada. If not, then the IAD had no jurisdiction
to hear the appeal.
[17]
The IAD considered the law of Vietnam governing the registration of marriages. The IAD referred to the procedural steps mandated
by the Decree, in particular the requirement that both parties be present to
receive the marriage certificate before the marriage could be registered. The
IAD found that Mr. Tang’s and Ms. Cao’s failure to receive the marriage
certificate meant that the marriage was never registered or given effect.
[18]
The IAD rejected Mr. Tang’s argument that the failure
to receive the marriage certificate had no material effect on the validity of
the marriage. The IAD noted that the office of the People’s Committee was
unable to produce a marriage certificate in 2005. In the words of the IAD, “notwithstanding that a valid traditional
marriage took place, it was not registered in accordance with the laws of
Vietnam …”.
[19]
The IAD nevertheless considered whether the
record could support a finding that Mr. Tang and Ms. Cao were in a conjugal
relationship. In making its assessment, the IAD referred to the “generally accepted characteristics of a
conjugal relationship” described in Molodowich
v Penttimen, [1980] OJ No 1904 (Ont. Dist. Ct.) [Molodovich], and
endorsed by the Supreme Court in M v H, [1999] 2 S.C.R. 3. This
non-exhaustive list of characteristics includes: shared shelter, sexual and personal
behaviour, domestic services, social activities, economic support, children,
and the societal perception of the couple.
[20]
The IAD found that there was little to indicate
that Mr. Tang and Ms. Cao were in a conjugal relationship. The IAD noted that
at the time of the sponsorship application, the couple had spent fewer than two
months together since their marriage ceremony in 2000 and Mr. Tang had not seen
Ms. Cao since 2005. The IAD also observed that there was a lack of evidence to
confirm financial support between Mr. Tang and Ms. Cao. The IAD accepted that
the couple were perceived as married by their respective communities; however,
the absence of evidence to support the remaining six factors demonstrated that
there was no conjugal relationship between them.
[21]
Given that the marriage was never registered and
the couple was not in a conjugal relationship at the time of the sponsorship application,
the IAD concluded that Ms. Cao was not a member of the family class for the
purposes of immigrating to Canada. The IAD therefore dismissed the appeal for
lack of jurisdiction.
IV.
Issues
[22]
This application for judicial review raises the
following issues:
A.
Did the IAD breach Mr. Tang’s right to
procedural fairness?
B.
Was the IAD’s finding that Mr. Tang’s
and Ms. Cao’s marriage was not valid under Vietnamese law reasonable?
C.
Was the IAD’s finding that Mr. Tang and Ms.
Cao were not in a conjugal relationship reasonable?
V.
Analysis
[23]
Questions of procedural fairness are reviewable by
this Court against the standard of correctness (Khosa v Canada (Minister of Citizenship and Immigration), 2009 SCC 12 [Khosa] at para 43; Mission Institution v Khela, 2014 SCC 24 at para 79). This Court should nevertheless
afford some deference to the IAD’s procedural choices (Forest Ethics
Advocacy Association v National Energy Board, 2014 FCA 245 at paras 70-72).
This does not alter the standard of review, but it may affect this Court’s
assessment of the scope of the IAD’s duty and whether it was breached (Aguirre
v Canada (Minister of Citizenship and Immigration), 2015 FC 281 at para 31;
Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR
817 at paras 21, 27).
[24]
The IAD’s assessment of
Vietnamese law is a question of fact that is reviewable by this Court against the
standard of reasonableness (Kenne v Canada (Minister of Citizenship and
Immigration), 2010 FC 1079 at para 11).
[25]
The IAD’s assessment of whether Mr. Tang and Ms.
Cao were in a conjugal relationship is also subject to the standard of
reasonableness (Traverse v Canada (Minister of Citizenship and Immigration),
2014 FC 551 [Traverse] at para 11).
[26]
A reasonable decision is one that is justified,
transparent and intelligible, and that falls within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47; Khosa at para 59).
A.
Did the IAD breach Mr. Tang’s right to
procedural fairness?
[27]
Mr. Tang says that the IAD breached his right to
procedural fairness by: a) failing to provide him with an opportunity to
address the IAD’s concerns regarding the validity of the marriage; b) failing
to give him an opportunity to provide evidence that the couple was in a
conjugal relationship; and c) failing to conduct an oral hearing before making its
decision.
[28]
The threshold issue to be decided by the IAD was
the validity of the couple’s marriage under Vietnamese law. This was explained
to Mr. Tang in correspondence from the IAD dated August 22, 2013:
Before the matter
of the refusal under section 4(1) of the Regulations can be determined the
issue of whether or not the appellant [Mr. Tang] and applicant [Ms. Cao] are
legally married must be addressed. The only document that speaks to a marriage
is found at page 35 of the Record which is a translation of a
document prepared by the applicant’s father dated June 28, 2008 that attests to
the fact that on November 21, 2000 a wedding party took place and which is
“affirmed” by the Village people’s committee. On what basis the affirmation is
made is not known.
The appellant must demonstrate that this
document in law is acceptable as evidence of a legal civil marriage in Vietnam which would be recognised in Canadian law as a marriage for the purpose of
immigration.
As legal validity of the marriage is a
threshold issue the hearing on the refusal cannot proceed until the panel is
satisfied that in fact a legal marriage exists.
[29]
Mr. Tang made written submissions in response to
this correspondence and further written submissions regarding the application
of the Decree. Following its consideration of Mr. Tang’s submissions and those
of the Minister, the IAD concluded that Mr. Tang’s and Ms. Cao’s marriage had
never been registered under Vietnamese law.
[30]
If an applicant knows the case to be decided by
the IAD and is given the opportunity to submit evidence and arguments, and if
the IAD bases its decision on the material before it, then there is no breach
of procedural fairness (Williams v Canada (Minister of Citizenship and
Immigration), 2008 FC 655). I am satisfied that Mr. Tang, who was represented by counsel, was given ample
opportunity to address the issues that were clearly identified by the IAD, and
that the IAD based its decision on the material that was submitted by the
parties for its consideration.
[31]
Mr. Tang says that he should have been given a
further opportunity to provide evidence that he and Ms. Cao were in a conjugal
relationship. He argues that this flowed from his request for a “Tabesh conversion” (Tabesh v Canada (Minister of Citizenship and Immigration),
[2004] IADD No 2 [Tabesh]). In Tabesh, the IAD found that if a
person applies to be sponsored as a member of the family class and is refused
based on the formal validity of the marriage, it is incumbent to consider
whether the person could be either a conjugal or common-law partner.
[32]
The “Tabesh conversion” is a creation of
the IAD. It appears to be derived from s 67(2) of the IRPA, which states that
where the IAD allows an appeal it may set aside the original decision and
substitute the determination that “in its opinion, should have been made”. However, opinion is divided among members of the IAD regarding its
authority to make such a conversion (Rahimi v Canada (Minister of
Citizenship and Immigration), 2014 CarswellNat 6113 (Imm. and Ref. Bd.
(App. Div.))). Even where the authority is believed to exist, the decision to
permit such a conversion is wholly discretionary (Shahabi v Canada (Minister of Citizenship and Immigration), 2006 CarswellNat 6397 (Imm. and Ref.
Bd. (App. Div.))).
[33]
Assuming, without deciding, that the IAD had a
duty to consider an alternative category of relationship under s 117(1)(a) of
the Regulations, the onus was on Mr. Tang to provide sufficient credible
evidence in support of his request (Oladipo v Canada (Minister of
Citizenship and Immigration), 2008 FC 366 at para 24). The IAD was not
required to invite additional submissions regarding the possible existence of a
conjugal relationship once it found that the formal requirements of a marriage under
Vietnamese law had not been met.
[34]
A decision-maker’s discretion extends to deciding
whether a hearing will be conducted orally or in writing (Re: Sound v Fitness
Industry Council of Canada, 2014 FCA 48 [Re: Sound] at para 37). Considerable
deference is owed to procedural decisions made by a tribunal with the authority
to control its own process (VIA Rail Canada Inc v Canadian Transportation
Agency, 2007 SCC 15 at para 231).
[35]
The Immigration Appeal Division Rules,
SOR/2002-230 govern procedural matters before the IAD. Rule 25(1) permits the
IAD to require parties to proceed in writing if this does not result in prejudice
and if there is no need for oral testimony. This is consistent with the
requirement in the IRPA that the IAD’s proceedings are to be conducted as
informally and expeditiously as the circumstances and considerations of
fairness and natural justice allow (IRPA, s 162(2)).
[36]
I am satisfied that the IAD’s choice of
procedure was consistent with the IRPA and should be afforded deference in
these circumstances (Re: Sound). The matters under consideration did not
require oral testimony. Mr. Tang, assisted by counsel, was given a sufficient
opportunity to address them through his written submissions.
B.
Was the IAD’s finding that Mr. Tang’s and Ms.
Cao’s marriage was not valid under Vietnamese law reasonable?
[37]
Mr. Tang complains that the IAD ignored the legal
opinion of Mr. Levinson and did not provide reasons for its conclusion that
registration was a formal requirement of a valid marriage under Vietnamese law.
[38]
The IAD was concerned primarily with the
procedural requirements of the Decree, which Mr. Levinson did not address in
his opinion. Mr. Levinson focused on the nature of the traditional Buddhist marriage
ceremony that had taken place and the “normal incidents of marriage” that
occurred afterwards, including “prayers,
[the] exchange of gifts and a festival meal”.
Mr. Levinson referred to the “Application
for Confirmation” prepared by Ms. Cao’s father
and asserted that it served in lieu of a marriage certificate. However, Mr.
Levinson offered no authority for this conclusion. The seal affixed to the
document by the People’s Committee stated only that Ms. Cao’s father “has truly organized a wedding party for his
daughter”. This did not assist the IAD in
resolving whether the marriage was registered with the civilian authorities in
accordance with the laws of Vietnam.
[39]
The IAD acknowledged Mr. Levinson’s opinion but
found it to be inconclusive. It did not overlook this evidence (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No1425 (Fed
TD) at para 17).
[40]
Similarly, there is no merit to Mr. Tang’s assertion
that the IAD’s decision was unjustified or unintelligible because the IAD did
not give reasons for its emphasis on the requirement that the marriage be
registered. The IAD’s concerns were well-founded and its rationale for
requiring evidence of the marriage’s registration was clear:
It is not the absence of the marriage
certificate per se that is the issue. The non-existence of a marriage
certificate is but a manifestation of the issue which, as stated, is whether or
not there is evidence that the appellant [Mr. Tang] and the applicant
[Ms. Cao] are legally married for the purposes of immigration and secondarily the arising
jurisdictional issue. The matter does not turn on the existence or
non-existence of the marriage certificate, but on whether or not there is
evidence that the couple were married in accordance with the laws of Vietnam. Focus on the marriage certificate alone unduly takes attention away from the
question of registration, which the respondent is correct in linking to the
marriage register.
[41]
The documentary evidence considered by the IAD
included a publication of the Research Directorate of the Immigration and
Refugee Board titled “Vietnam:
Information on what constitutes a valid marriage, particularly on whether it is
necessary to have a ceremony.” According to this
document, “[t]o be valid, a
marriage in Vietnam must be approved by the Uy Ban Nhan Dan (People’s
Committee) of the township, village or ward where one of the marrying parties
resides, and registered in the Marriage Registry (sect. 8). All other acts to
celebrate marriage would not be legal (ibid).”
References are to the Vietnamese Marriage and Family Law, 29
December 1986, which was also filed in evidence before the IAD. As the IAD
found, the couple’s failure to meet the procedural requirements for registering
the marriage as prescribed by Article 10 of the Decree rendered the marriage
invalid.
[42]
The IAD therefore reasonably concluded that the
evidence adduced by Mr. Tang failed to establish that the marriage was valid
under the laws of Vietnam.
C.
Was the IAD’s finding that Mr. Tang and Ms. Cao
were not in a conjugal relationship reasonable?
[43]
A “conjugal partner” is defined in s 2
of the Regulations as follows:
[I]n relation to a sponsor, a foreign
national residing outside Canada who is in a conjugal relationship with the
sponsor and has been in that relationship for a period of at least one year.
[Emphasis added.]
[44]
Mr. Tang says that the IAD wrongly restricted
its analysis to the one-year period preceding the filing of the sponsorship
application. Mr. Tang points to the following excerpt from paragraph 72 of the IAD’s
decision:
[72][…] The panel could consider that the
couple enjoyed a conjugal relationship if there was evidence to that effect in
the year prior to the [application for permanent residence] which was made
in January 2010.
[Emphasis added.]
[45]
However, the IAD correctly described the legal
test for establishing a conjugal relationship at paragraph 68 of its decision:
[68] […] [I]n
order to establish the fact of a conjugal relationship the couple would
minimally have to satisfy the definition of conjugal partners which, according
to the definitions section of the Regulations “means, in relation to a sponsor,
a foreign national residing outside Canada who is in a conjugal relationship
with the sponsor and has been for a period of at least one year.”
[46]
The IAD also noted that “conjugal relationship” is not defined in the Regulations and correctly described the criteria
of a conjugal relationship found in Molodowich. The IAD examined Mr.
Tang’s relationship with Ms. Cao against these non-exhaustive factors, noting
that Mr. Tang had not seen Ms. Cao since 2005 and that the couple had spent fewer
than two months together since their marriage ceremony in 2000. The panel also
noted the lack of evidence to demonstrate any financial support between Mr.
Tang and Ms. Cao.
[47]
The Supreme Court has cautioned against the “line-by-line treasure hunt for error” (Communications, Energy and Paperworkers Union of Canada, Local
30 v Irving Pulp and Paper, Ltd, 2013 SCC 34 at para 54). While the excerpt
relied upon by Mr. Tang does appear to contain an error, it is clear from
reading the decision as a whole that the IAD correctly described the law and
characteristics of a conjugal relationship and applied these to the facts with
adequate sensitivity to the fact that Mr. Tang and Ms. Cao were living in
separate countries (Traverse at para 15). I am satisfied that the
decision of the IAD is supported by the record and the minor error identified
by Mr. Tang does not undermine the reasons given (N.L.N.U. v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14, 15).
VI.
Conclusion
[48]
For the foregoing reasons, the application for
judicial review is dismissed. No question is certified for appeal.
JUDGMENT
THIS COURT’S JUDGMENT is that
the application for judicial review is dismissed. No question is certified for
appeal.
"Simon
Fothergill"
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