Digests

Ly v. Canada (Minister of Citizenship and Immigration)

IMM-5945-02

2003 FC 1184, von Finckenstein J.

10/10/03

10 pp.

Judicial review of decision of Appeals Division of Immigration and Refugee Board (Board) rejecting applicant's appeal of visa officer's decision to refuse to grant his wife, Thi Kim Trang Huynh, permanent resident status in Canada-- Board rejected appeal on basis excluded member of family class, pursuant to Immigration Regulations, s. 4(3)--Whether Board misinterpreted or misapprehended evidence before it, thereby committing reviewable error--Respondent raises two preliminary procedural questions based upon fact only affidavit filed in support of application that of applicant's former solicitor: (1) what, if any, significance, should be given to fact applicant failed to file own affidavit in support of this judicial review; and (2) should affidavit of former solicitor be struck from record?--Except on motions, affidavits shall be confined to facts within personal knowledge of deponent-- Affidavit must be free from argumentative materials and deponent must not interpret evidence previously considered by tribunal or draw legal conclusions--If affidavit does not meet these requirements, application can only succeed if error apparent on face of record--Here, only first paragraph and first half of second paragraph within deponent's personal knowledge, rest either based on information and belief or argumentative--Accordingly, every other paragraph will be struck from record--Particularly troubling paragraph 10 of former solicitor's affidavit in which he made allegation Board member, whose decision being reviewed in this application, responsible for previous appellant's suicide--This kind of cavalier accusation has no business in affidavit, let alone affidavit by senior member of immigration bar--Turning now to central issue, in reasons, Board placed significant weight upon conclusion that "no satisfactory explanation" had been provided as to why couple were engaged for only few weeks--Applicant has urged Court to find this constitutes reviewable error for two reasons--First, applicant submitted that he proposed to Ms. Huynh several months before wedding --Applicant testified her first response was that she needed to ask her parents, and submitted that, within his culture, this constituted unofficial acceptance of proposal--Therefore, applicant argues engagement was several months rather than several weeks long--Second, applicant submitted Board failed to consider applicant's testimony wedding date had been chosen by other family members in order to comply with family's cultural and religious beliefs--Board not obliged to accept applicant's testimony accurate portrayal of cultural background of engagement and marriage--However, as no suggestion in reasons Board found applicant not credible witness, his explanation constituted relevant evidence which Board obliged to consider--If evidence rejected, Board bound to outline its reasons for doing so in clear and unmistakable terms--Here, no indication in reasons, nor any explanation as to why testimony rejected--As such, Board committed reviewable error--Judicial review allowed--Immigration Regulations, SOR/78-172, s. 4(3) (as am. by SOR/93-44, s. 4).