Toronto immigration board: No more ‘I love you’s’

Immigration and Refugee Board of Canada

Immigration and Refugee Board of Canada hearing offices in Toronto, Ontario.

A COUPLE who couldn’t remember when they first said “I love you” have had their marriage declared a fraud to get the husband into Canada from Vietnam.

The 26-year-old wife was appealing an earlier rejection by immigration officers who questioned the validity of the union as a sham for the purpose of obtaining the status and privilege of permanent residency.

Van Kim Pham went before the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada in Toronto, Ontario,1 in a continued hearing, four years on from the original failed application for Hong Phuc Nguyen to move to the country.

But dozens of pages of evidence, supporting documents, photographs and hours of testimony from four people were all dismissed by presiding board member Vandana Patel as not credible.

The key was an inability for Mr Nguyen to offer even an approximate period when he first told his then potential bride that he loved her.

Member Patel concluded that although relationships could be looked at “through the cultural lens” and the impact of saying “I love you” might differ, both husband and wife asserted that there was love in the relationship. Given that both individuals were young and in a long-distance relationship, Member Patel said that the issue of when they first expressed their love would be more important.

Ms Pham, of Brantford, Ontario, first met Mr Nguyen at the airport when she travelled to Vietnam with Mr Nguyen’s aunt in September 2008. The aunt was subsequently with Ms Pham on future trips and even at a medical appointment last October for medical documents to support the appeal, after the first part of the hearing in July 2014 and before the second part on February 17, 2015.

Speaking by teleconference and through a translator, Mr Nguyen told the hearing that his aunt had not told him anything about Ms Pham coming on the trip and their meeting was coincidence.

The 27-year-old said: “After the first meeting, I really liked my wife because she’s really cute. She has a nice shape.”

Mr Nguyen said he subsequently spent some time with Ms Pham and that they both liked music, movies, live show performances and Vietnamese dishes.

He was repeatedly asked by the Canadian government’s representative, Vanessa Mayer, when he had fallen fell in love with his eventual wife and did not offer an answer.

She asked him: “Do you remember when you first said, ‘I love you’ to your wife?”

He said: “I don’t remember the date but I remember the date I proposed to her.”

Member Patel then asked again. She said: “You cannot remember when you told her you loved her. You proposed to her and a wedding was planned with 300 people attending the reception. I find it surprising that you cannot recall when you told your wife that you love her and I also find it surprising that you decided to move to Canada only when you registered your marriage.

“You’re both young. You claim to have fallen in love. You don’t live in the same country. It seems unlikely that you would not have talked about moving to Canada until the day your marriage is registered.

“Would you care to explain?”

Mr Nguyen replied: “The first time I told her that I loved her and she accepted that, I don’t recall exactly the date. But I remember the proposed date because I want to have a happy family with my wife.”

Earlier in the hearing, Ms Pham said she had memory problems and there were very long silences after some questions and she was subsequently unable to answer. She became visibly upset when asked about what she did in her spare time.

She replied: “Honestly, I don’t have spare time. I work seven days a week just so I can bring my husband over. It’s ridiculous. I shouldn’t have to work this hard.”

Mr Nguyen subsequently said that his wife sent him $200 a month last year but anything he had left over, he would save and convert back to Canadian dollars to bring into the country should the appeal be allowed on his rejected bid to move to Canada.

He said: “My wife sends money for me to spend for living. That’s my wife’s love to me.”

Ms Pham’s mother said that her daughter had learning difficulties that she believed were because of surgery to her head as a baby while living in the United States, but there was no supporting documentation about the operation. The only evidence of the memory loss was from a doctor’s assessment last October.

The mother also said repeatedly that she first met her son-in-law in September 2009, even though she was at the engagement celebration in June that year.

Mr Nguyen’s aunt was also challenged on a timeline of meetings between the couple.

Since the application for permanent residency in Canada was made, sponsored by Ms Pham, and the couple interviewed in 2011, and its rejection that year, the pair saw each other in 2012 but there have been no trips since. Witnesses asserted that they still spoke several times a week.

Is justice blind?

Is justice blind? Illustration by artist in residence Jason Skinner.

In closing arguments, Ms Pham’s counsel, Ann Crawford, said that the original rejection of the application suggested that the couple were not compatible as one was from Vietnam and the other one from North America and that this was not a substantial reason. She asserted that the couple’s meeting in the airport was coincidence and on the balance of probabilities, the marriage was not entered into for immigration purposes.

Ms Mayer for the government said the witnesses were not credible and that there was no substance why the couple wanted to spend the rest of their lives together. While interests in movies and music were “nice for a friend”, there was no specific knowledge about each other.

She added that Mr Nguyen’s aunt’s involvement in the development of the relationship “is certainly a concern”.

Member Patel said Ms Pham, her mother, Mr Nguyen and his aunt were “not credible or trustworthy witnesses” and rejected the limited medical evidence about memory loss and learning difficulties.

She said: “Even if I were to accept that she has a medical explanation, I still have to consider the other evidence that I did hear. And I still find that the other evidence was not credible.

“I would expect a mother to keep medical reports about surgery done to her child’s brain.”

On the issue of when they discussed Mr Nguyen moving to Canada, Member Patel said: “[Ms Pham’s] testimony was very clear that she does not want to move to Vietnam. In that situation I place even more importance on the discussion on who is going to move where and when those discussions took place. For a person motivated to stay in Canada, I would expect that to be up front and discussed before they got married.”

She concluded that the marriage was not genuine and was primarily for the purpose of immigration.

Member Patel said a more “fulsome” written version of her decision would be sent to the appellant but its substance and the conclusion would remain the same. Ms Pham’s appeal was rejected.

 

CORE PRINCIPLES APPLIED

No relevant issues on principles 2, 3, 4, 5, 6, 9 or 10.

1. Freedom of expression: Open courts and tribunals can be openly reported in the absence of specific orders on particular cases. There were no such orders in this cases and so Tomorrow asserts its freedom to report the proceedings.
7. Justice must be seen to be done: Most members of the public never attend court hearings as observers. While reporters can, in practice, represent the public, they also may rarely attend certain types of courts or cases. Statistics about the courts offer little information about the mechanisms of these courts and so open justice requires at least periodic observation by outsiders.
8. Be a safe harbour for the public and staff: No details were led of potential risk to the individuals involved in this case on this date. Court reporting must maintain a certain distance from what consequences of reporting might exist in the future, to ensure that justice is seen to be done.
11. Promote responsible debate and mediation: How do you think the immigration tribunal system works in Canada? Have you ever attended a hearing as an observer or as an immigrant yourself? How should the media best ensure scrutiny of the system?

  1. Information about the system is available on the Canadian government website.

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