Date: 20080418
Docket: IMM-3814-07
Citation: 2008 FC 508
Toronto, Ontario, April 18, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
MADELEINE
MAHMOUDIAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Madeleine
Mahmoudian married Babak Pajouhi by proxy on December 4, 2004. She seeks
judicial review of the decision of the Immigration and Refugee Board,
Immigration Appeal Division that she had not established on the balance of
probabilities that the marriage was genuine.
[2]
Section 4
of the Immigration and Refugee Protection Regulations, S.O.R./2002-227,
provides as follows:
|
For
the purposes of these Regulations, a foreign national shall not be considered
a spouse, a common-law partner, a conjugal partner or an adopted child of a
person if the marriage, common-law partnership, conjugal partnership or
adoption is not genuine and was entered into primarily for the purpose of
acquiring any status or privilege under the Act.
|
Pour
l’application du présent règlement, l’étranger n’est pas considéré comme
étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant
adoptif d’une personne si le mariage, la relation des conjoints de fait ou
des partenaires conjugaux ou l’adoption n’est pas authentique et vise
principalement l’acquisition d’un statut ou d’un privilège aux termes de la
Loi.
|
I.
BACKGROUND
[3]
Ms.
Mahmoudian met her husband Babak Pajouhi in Iran in 2001, when they worked together as
graphic designers for a year. Ms. Mahmoudian was a full time student, but
worked part time as well. The couple stayed in contact socially after her
contract with the company ended. In January 2004, Mr. Pajouhi asked Ms.
Mahmoudian to consider marrying him. After four months of dating, engagement ceremonies
were held for family and friends.
[4]
At the
time of the engagement, Ms. Mahmoundian was in the process of being sponsored
to Canada by her sister as a dependent
child of her mother. Her sister was informed that marriage would make Ms.
Mahmoundian ineligible for sponsorship in that category due to the definition
of “dependent child” in the Immigration and Refugee Protection Regulations,
SOR/2002-227, but that her engagement would not pose an issue.
[5]
Ms.
Mahmoudian and Mr. Pajouhi were not married until after she had landed in Canada on November 25, 2004. Their
marriage was celebrated by proxy on December 4, 2004, and Ms. Mahmoudian began
the process of sponsoring her husband to Canada on January 1, 2005. She travelled to Iran in March, 2005 and spent a month with
her husband and his family. She also visited him in January 2006. At neither
time did they have an official wedding ceremony because her mother wanted her
family to be present and the financial implications of them all going to Iran
made that too difficult.
[6]
Mr.
Pajouhi was interviewed in Tehran on September 25, 2005. The
interview notes show that Mr. Pajouhi stated that when he met Ms. Mahmoudian
she was not a student, that she worked full-time, and that she continued to
work full-time until she left for Canada.
When confronted with Ms. Mahmoudian’s assertion that she was a full-time
student during this period of time and working only part-time, he provided a
number of explanations but finally ended by stating that “I don’t know anything
about her case.”
[7]
The Visa Officer
decided on November 14, 2005, that Mr. Pajouhi was not eligible under the
family class as the marriage was not genuine.
[8]
Ms.
Mahmoudian appealed to the Immigration Appeal Division, which heard the case on
January 26, 2007. The appeal was de novo as was correctly noted by the
Panel. The Panel heard testimony from Ms. Mahmoudian, Mr. Pajouhi and Ms.
Mahmoudian’s sister.
[9]
The IAD
listed a number of areas of discrepancy in the evidence of Ms. Mahmoudian and
Mr. Pajouhi. The two that counsel correctly identified as being the most
troublesome from the perspective of the IAD were the issue of Mr. Pajouhi’s
lack of knowledge concerning his wife’s work and study status and the
discrepancy in their evidence concerning the time spent together in Iran in
2005, following the proxy marriage. This latter was described by the Board as
the “central contradiction”.
II.
DECISION
[10]
Counsel
for both parties acknowledged that this application was primarily factual in
nature and both took considerable time to guide the Court through the
transcript of the proceedings below, highlighting relevant testimony.
[11]
Both made
reference to the recent decision of the Supreme Court in Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir),
with respect to the standard of review now being that of reasonableness. The
Minister also suggested that the “reasonableness” standard in Dunsmuir
had to be interpreted in light of the express wording of section 18.1(4) of the
Federal Courts Act.
[12]
Ultimately,
I do not have to address that issue as, in my view, regardless of the standard
one applies, the Board made no reviewable error.
[13]
With
respect to the evidence regarding the husband’s lack of knowledge concerning
his wife’s employment and schooling status, Ms. Mahmoudian’s counsel relied on
the evidence of the Applicant’s sister that Iranian men care little for women’s
education and thus the husband’s lack of knowledge in this regard would not be
surprising. Counsel also formulated an argument that the Board relied too heavily
on the record of Mr. Pajouhi’s knowledge when the husband spoke initially to
the Visa Officer, rather than the evidence he gave some months later to the
Board.
[14]
In
November 2005, when interviewed by the Visa Officer, the husband stated that
his wife was working full-time when they met in 2001, and that she was not a
student. This was at a time some four years after they met and after they had
been engaged for a year and one-half during which they claimed that they were seeing
each other on a frequent basis.
[15]
In January
2007, he testified before the Board that his wife was a part-time employee and
a full-time student when they met in 2001, and continued to be so until she
travelled to Canada.
[16]
When
questioned as to what he meant by the phrase “full-time” with respect to work,
he answered that he meant someone who worked nine to five each day. Yet his
wife testified that she worked only a few hours each day when they worked
together in 2001, and they both testified that they had worked in the same office
for more than one year.
[17]
Mr.
Pajouhi’s explanation for the confusion in his responses as to his wife’s
status was found by the Board to be unsatisfactory. Specifically, the Board
stated that it was “incredible that an individual would not seek to know the
reason his wife-to-be would be considered a dependant child when, to his
knowledge, she is an adult working full-time as a designer”. In other words,
the Board found it to be incredible that Mr. Pajouhi would not have known, when
interviewed in November 2005, that his wife had been a full-time student and
part-time employee since at least 2001. In my view, based on the record, that
finding was not unreasonable.
[18]
As earlier
noted, the Board’s reasons indicate that the contradictory testimony that was
found to be central to the negative credibility findings surround the details
of where and for how long the couple stayed when Ms. Mahmoudian visited her
husband in March 2005 for the first time after their proxy marriage. The
member described the discrepancy as follows:
The appellant was very clear
that her return to Iran in March 2005 was for a
month-long honeymoon in Iran, which the couple spent together, with eight to
ten days at Babak’s Villa and rest of the time in Tehran. She confirmed this when she was
cross-examined, saying that she stayed at Babak’s home, with some time spent up
north at the villa. When the applicant testified he declared that they took a
trip to the north part of the country where they have a villa, and stayed there
with his family. He was asked if they had stayed elsewhere, he said no, they
always stayed with his family because she did not have much time in Iran, so they stayed at the villa for three
to four weeks.
[19]
The
Applicant notes that Mr. Pajouhi’s response that they had not stayed elsewhere
came when he was asked if they had stayed anywhere “other than his parents’
house or the villa”. Counsel suggests that Mr. Pajouhi’s evidence is not
necessarily inconsistent with that of the Applicant.
[20]
However, in
my view, the transcript is clear that each was asked specifically how
long they spent at the villa and while the Applicant responded that it was a
period of eight to 10 days, her husband responded that it was three or four
weeks. Despite counsel’s imaginative, interpretative suggestions, in my view,
the responses are clearly contradictory and thus could reasonably form the
basis for a finding that the evidence was not credible.
[21]
The Board
stated the basis for its conclusion that this contradiction was central to the
adverse finding on credibility.
I cannot reconcile this
discrepancy with the idea that this is a genuine marriage between two young
people who were together at last after having to go through a difficult
prolonged courtship ….
[22]
In my view,
that assessment was open to the Board. It was not engaged in a microscopic
examination of the evidence; rather it was faced with a glaring inconsistency
in the evidence of the husband and wife on a fact that, were the marriage
genuine, could reasonably be expected to be consistent.
[23]
The Board
supported its conclusion as to credibility based on the two contradictions
noted as well as other less significant contradictions in the evidence of the
husband and wife.
[24]
The
conclusion of the Board that this was not a genuine marriage falls within the
range of acceptable outcomes as described by the Supreme Court in Dunsmuir, above,
based on the evidence before the Board and, in my view, the decision is not
reviewable.
[25]
While the
Applicant initially sought her costs of the Application, this was not pursued at
the hearing.
[26]
For the
foregoing reasons, I dismiss the application. Neither party has submitted any
question of general importance for certification. I find no such questions
certifiable on the facts of this case.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. This application is dismissed
and
2. No question of general
importance is certified.
“Russel W. Zinn”
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