Date:
20130702
Docket:
IMM-5788-12
Citation:
2013 FC 731
Ottawa, Ontario,
this 2nd day of July 2013
Present: The
Honourable Mr. Justice Roy
BETWEEN:
GRACE OMOLARA TAIWO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision made on May 15, 2012 by the
Immigration Appeal Division of the Immigration and Refugee Board (the “IAD”),
refusing the appeal of Mrs. Grace Omolara Taiwo (the “applicant”) of a
visa officer’s denial with respect to the sponsorship of Mr. Raphael
Agboola, a citizen of Nigeria. The applicant wished for Mr. Agboola to become a
permanent resident as a member of the family class. The appeal was heard
pursuant to section 62 of the Immigration and Refugee Protection Act, SC
2001, c 27 (the “Act”); the judicial review is sought in accordance to section
72 of the Act.
[2]
The
applicant claims that Mr. Agboola is her spouse. The IAD agreed with the visa
officer that the marriage was not genuine for the purposes of the Act.
[3]
Subsection
13(1) of the Act allows sponsorship for permanent residence as a member of the
family class. Section 117 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the “Regulations”) defines a sponsor’s spouse as
being a member of the family class.
[4]
It
is section 4 of the Regulations that creates the issue in this case in that it
excludes from consideration some spouses:
|
4. (1) For the purposes of these Regulations, a foreign national shall not
be considered a spouse, a common-law partner or a conjugal partner of a
person if the marriage, common-law partnership or conjugal partnership
(a) was entered into primarily for the purpose of acquiring any status or
privilege under the Act; or
(b) is not genuine.
|
4. (1) Pour l’application du présent règlement,
l’étranger n’est pas considéré comme étant l’époux, le conjoint de fait ou le
partenaire conjugal d’une personne si le mariage ou la relation des conjoints
de fait ou des partenaires conjugaux, selon le cas :
(a) visait principalement l’acquisition d’un statut ou d’un privilège
sous le régime de la Loi;
(b) n’est pas authentique.
|
Issue and
Standard of Review
[5]
The
only issue for consideration in this judicial review application is whether or
not the marriage was entered into primarily for the purpose of acquiring a
status under the Act or is not genuine. Both the visa officer and the IAD
concluded that it was.
[6]
The
standard of review on this application is reasonableness. In Alberta
(Information and Privacy Commissioner) v Alberta Teachers’ Association,
[2011] 3 S.C.R. 654, the Court ruled with respect to mixed questions of fact and
law that the standard of review is presumably reasonableness. The parties do
not disagree. This is simply an application of the facts on the law, a mixed
question of fact and law, which attracts a standard of reasonableness. It
follows that it will be for the applicant to satisfy this Court that the
decision was not reasonable. As pointed out in Dunsmuir v New Brunswick,
[2008] 1 S.C.R. 190:
[47] Reasonableness is a deferential
standard animated by the principle that underlies the development of the two
previous standards of reasonableness: certain questions that come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable, referring both to
the process of articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
Deference is owed to the
decision-maker.
Facts
[7]
The
facts involved in the determination of whether or not a marriage is genuine, or
not primarily for the purpose of acquiring any status under the Act, are of
course critical. In this case, the set of facts with which the decision-maker
had to contend was particularly convoluted. Actually, this is part of the
reasons why the appeal had to be dismissed in that the applicant and
Mr. Agboola had stories that were so convoluted and contradictory that it
was reasonable for the IAD to conclude as it did. The burden is on the
applicant to show that the marriage is genuine. Where the evidence is
deficient, that demonstration will be lacking.
[8]
The
applicant entered Canada from Nigeria in November 2003 and acquired permanent
resident status on May 31, 2005. She became a citizen in 2009. She is in her
mid-30s and the mother of four children. Her first child was born before she
met Mr. Agboola.
[9]
It
appears that the couple met fortuitously in November 2003. The relationship
evolved quickly in December 2003, leading to the birth seven months later of a
child, according to the applicant. However, Mr. Agboola was deported back to Nigeria on January 4, 2004. He returned to Canada, illegally, in May 2005. He was detained,
starting in January 2006 and deported again in April. The couple were married
in March 2006, while Mr. Agboola was still detained, but before he was
deported. The applicant filed a sponsorship application in June 2008. What
happened between those dates remained very much unclear in spite of lengthy
interrogations and opportunities given to shed light on the relationship. Three
children were allegedly born of that union. One on July 4, 2004, the second on
March 26, 2006 and the third on August 8, 2009.
[10]
Mr.
Agboola is in his mid-40s and is a citizen of Nigeria. Basically, the applicant
relies on the three children that are said to be the children of the
relationship to establish that there exists a marriage not entered into
primarily for the purpose of acquiring a status under the Act. However, the
immigration history of Mr. Agboola leaves a cloud over the issue. The
quality of the relationship did not dispel that cloud, quite the opposite.
[11]
The
applicant’s spouse has come to Canada on a number of occasions since 2001 and
has been deported back more than once. While in Canada, he married a first
time, in June 2001, just before his refugee claim was heard and decided, in
September of that year. Mr. Agboola’s then wife did not try to sponsor him; the
marriage ended in divorce in February 2006, but it is claimed that the spouses
separated in October 2003, just before Mr. Agboola met the applicant.
The Impugned
Decision
[12]
To
say the least, it was difficult for the decision-maker to assess this case. The
IAD concluded that there was a fundamental lack of credibility on the part of
both the applicant and Mr. Agboola. The IAD was incapable of piecing the
story together.
[13]
One
would have thought that the existence of children would militate in favour of
the genuineness of the marriage. Indeed the applicant contends that it could be
decisive. That was acknowledged as such. But the IAD found numerous
discrepancies in the stories and confusion about the history of the couple,
including the children. At paragraph 16 of its decision the IAD spoke in terms
of “the evidence about the children is, like all of the evidence, shrouded in
mystery”. The IAD goes on:
While the most palatable and preferred inclination
is to accept what has been told about conception and paternity of the children
notwithstanding the couple’s lack of credibility in other areas of testimony,
an objective analysis of the available evidence does not support that approach
in this case.
[14]
The
IAD found that there was a lack of clarity concerning a number of factors that
are considered to assess whether a marriage is genuine and not primarily for
the purpose of acquiring an immigration related status. They are not
insignificant: timing of the births and paternity, when did the couple spend
time together, a lack of clarification about the delays in moving along the sponsorship
application filed in June 2008, questions about Mr. Agboola’s history and time
spent with the family, coupled with his numerous attempts to come to Canada,
including a failed refugee application in 2001. The many attempts to come to Canada by Mr. Agboola can certainly tend to show that it has been a primary pursuit of his to obtain
status in Canada.
[15]
In
the end, the IAD found that not only were the issues that concerned the visa
officer unresolved, but more inconsistencies and credibility issues emerged as
part of the appeal as the applicant and her husband were heard. Far from
clarifying issues, the testimonies, and in particular that of the applicant,
lacked credibility. Actually, the IAD provides telling examples of significant
“discrepancies and unresolved areas of confusion”, going from uncertainty about
paternity to when and where the couple would have spent time together over a
period of many years.
[16]
It
is that decision that is now challenged before this Court. The applicant must
show, on a balance of probabilities that, not only is there another outcome
possible, that is that the marriage was genuine, but that the outcome reached
by the IAD, which is that the marriage is not genuine and was entered primarily
for acquiring status under the Act, is not in a range of possible and
acceptable outcomes.
Analysis
[17]
The
applicant has not discharged her burden. I have reviewed the evidence and, like
the IAD, I have found that the evidence of the applicant and Mr. Agboola in
support of the genuineness of their marriage was not cogent. It actually
stretched credibility.
[18]
The
applicant argues that the couple’s credibility is not impugned. This is not
what the IAD found. Not only was their credibility put in doubt, but the story
as told was objectively less than persuasive.
[19]
It
is certainly true that the existence of children will play in favour of the
genuineness of a marriage (Gill v Canada (Minister of Citizenship and
Immigration), 2010 FC 122). That was readily acknowledged by the IAD and it
was stressed repeatedly by the applicant. As already pointed out, even the
evidence about the children is left very much unclear after an attempt at a
close examination. One would have expected clarity on this. It was not
forthcoming. But such is not the only issue. Other considerations are at play.
It is rather the lack of clarity and specificity about the marriage that is
problematic. Put together, the IAD was left with serious doubts about what it
called “the intentions underlying the marriage”. Given the evidence, this
conclusion is amply supported.
[20]
The
only question this Court has to answer is whether the IAD’s decision has been
shown to be unreasonable. The burden was on the applicant to make that
demonstration on a balance of probabilities. In order to be successful, at a
minimum, the evidence must be consistent to have a chance to be persuasive. It
was simply impossible to decipher out of the testimonies of the applicant and
Mr. Agboola what the true situation was. What would appear to be simple
questions that ought to receive simple and straightforward answers became
inconsistencies, contradictions and implausibilities. The decision-maker was
left with something so inconsistent and unclear that the marriage could not be
found to be genuine. In the circumstances, the Court must defer to the IAD
which has the added advantage of having the witnesses testify in front of it.
JUDGMENT
The application
for judicial review of a decision made on May 15, 2012 by the Immigration
Appeal Division of the Immigration and Refugee Board, denying the appeal of the
applicant of a visa officer’s denial with respect to the sponsorship of Mr.
Raphael Agboola, is dismissed. No question for certification has been proposed
and the Court finds that none arises.
“Yvan Roy”
Email this Content