Docket: IMM-2348-16
Citation:
2017 FC 365
Ottawa, Ontario, April 12, 2017
PRESENT: THE
CHIEF JUSTICE
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BETWEEN:
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ENSIEH-ALSADAT
MOOSSAVI-ZADEH
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
In this Application, Ms. Moossavi-Zadeh,
seeks judicial review of a decision of the Immigration Appeal Division of the
Immigration and Refugee Board [IAD] dismissing her appeal of a visa officer’s
decision that her marriage to Mr. Cetin Yildirim is not genuine or was entered
into for the purpose of acquiring a status or privilege under the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA].
[2]
Ms. Moossavi-Zadeh submits that the IAD’s
decision [the Decision] was unreasonable because the IAD failed to consider
important evidence, misapprehended the facts, relied on improper principles and
made unreasonable credibility findings.
[3]
To prevail on this Application, Ms. Moossavi-Zadeh
must establish that the IAD’s Decision was unreasonable with respect to both of
the paramount findings that the IAD reached, namely, that she had not
established on a balance of probabilities (i) that her marriage to Mr. Yildirim
is genuine, and (ii) that the marriage was not entered into
primarily for the purpose of acquiring any status or privilege under the IRPA.
[4]
For the reasons set forth below, I have
determined that Ms. Moossavi-Zadeh has not demonstrated that the second of
those paramount findings was unreasonable. It will therefore not be necessary
for me to address the finding that was made with respect to the genuineness of
the marriage.
II.
Background
[5]
Ms. Moossavi-Zadeh is a citizen of Canada
who immigrated from Iran in 2006.
[6]
Mr. Yildirim is a citizen of Turkey who
entered Canada through Montreal in 2001 and claimed refugee protection. After
that claim was rejected on credibility grounds, a Departure Order was issued
against him, which then became a Deportation Order. In 2006, when the Canada
Border Services Agency [CBSA] was unable to locate him to remove him to Turkey,
an arrest warrant was issued against him.
[7]
In 2003, Mr. Yildirim divorced his first
wife, who was living in Turkey with their two sons.
[8]
After moving from Montreal to Vancouver without
advising immigration authorities, Mr. Yildirim married his second wife
[Second Wife] in November 2006. He remained married to his Second Wife
throughout most of the period of his courtship to Ms. Moossavi-Zadeh. It
appears to be common ground between the parties that Mr. Yildirim and his
Second Wife never lived together. They were divorced sometime in the
mid-to-latter part of 2012.
[9]
Ms. Moossavi-Zadeh divorced her first
husband in 2010 and then married Mr. Yildirim in a civil ceremony that
took place in December 2012, after a religious ceremony that occurred in 2011.
[10]
In August 2013, Mr. Yildirim was detained
after attending an interview with a representative of Citizenship and
Immigration Canada, in connection with Ms. Moossavi-Zadeh’s spousal
sponsorship application and his application for a work permit. After being released
from detention, he departed for Turkey, where he currently resides.
[11]
In May 2014, Ms. Moossavi-Zadeh’s
application to sponsor Mr. Yildirim for permanent residence was rejected
by a visa officer located in Ankara. In making that determination, the visa
officer noted, among other things, that Mr. Yildirim had been evasive in
his explanation of the development of his relationship with Ms. Moossavi-Zadeh;
that he was still married to his Second Wife while he was living with Ms. Moossavi-Zadeh;
that he had not supplied satisfactory proof that he had actually lived with Ms. Moossavi-Zadeh;
and that he had not adduced satisfactory proof of ongoing communication between
them.
III.
The Decision
[12]
Over the course of a fairly lengthy Decision,
the IAD identified numerous inconsistencies in the oral evidence given by Ms. Moossavi-Zadeh
and Mr. Yildirim, as well as various aspects of their evidence that it
characterized as being vague and unsatisfactory. The inconsistencies included
internal inconsistencies in the evidence given by Mr. Yildirim, as well as
inconsistencies with the evidence given by Ms. Moossavi-Zadeh and discrepancies
with the documentary evidence that were not adequately explained.
[13]
As a result of those concerns, the IAD found
that the evidence given by Ms. Moossavi-Zadeh and Mr. Yildirim was
not credible or trustworthy. In turn, that “lack of
credibility on significant issues” led the IAD to give less weight to
the consistent areas of their testimony, and to the documentary evidence that
was adduced.
[14]
In the result, the IAD concluded that Ms. Moossavi-Zadeh
had not met her onus to establish on a balance of probabilities that her
marriage to Mr. Yildirim is genuine and that their marriage was not
entered into for the purpose of acquiring any status or privilege under the
IRPA.
IV.
Relevant Legislation
[15]
The issue in this Application is whether the IAD
reasonably found that Ms. Moossavi-Zadeh had not met her burden under
subsection 4(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations]. That provision states:
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English
Legislation
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Législation
française.
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Bad faith
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Mauvaise foi
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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
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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 :
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(a) was entered
into primarily for the purpose of acquiring any status or privilege under the
Act; or
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a) visait
principalement l’acquisition d’un statut ou d’un privilège sous le régime de
la Loi;
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(b) is not
genuine.
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b) n’est pas
authentique.
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V.
Issue
[16]
Ms. Moossavi-Zadeh submits that the IAD erred in
several different ways. These include reaching findings of fact without regard
to the evidence before it, failing to consider the totality of the evidence, misapprehending
the facts, relying on findings with respect to peripheral issues, and making an
improper adverse inference. At the oral hearing, her counsel acknowledged that
these issues can be conveniently grouped into the single issue of whether the
Decision was unreasonable.
VI.
Standard of review
[17]
It is common ground between the parties that the
determination of whether a marriage is genuine, or was entered into for a
purpose of acquiring any status or privilege under the IRPA, raises questions of
mixed law and fact that are reviewable on a standard of reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9, at para 53 [Dunsmuir]).
[18]
In conducting a review on a reasonableness
standard, the Court will assess whether the Decision falls “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law” (Dunsmuir, above,
at para 47). In performing that assessment, the Court is required to
consider whether the Decision fits comfortably within the principles of justification,
transparency and intelligibility (Dunsmuir, above, at para 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, at para 59).
VII.
Analysis
[19]
The first alleged shortcoming of the Decision
that Ms. Moossavi-Zadeh identifies is that it unreasonably focused on
peripheral issues, particularly with respect to the first two years of her relationship
with Mr. Yildirim. I disagree.
[20]
After identifying some consistent aspects of
their testimony regarding their initial contacts, the IAD identified a discrepancy
in that evidence with respect to when they were first intimate. In the context
of this case, that was not a peripheral issue.
[21]
The IAD then proceeded to discuss further
inconsistencies with respect to when Ms. Moossavi-Zadeh became pregnant on
two occasions, had two abortions, and used intra-uterine devices. The IAD drew
an adverse inference from the absence of any documentary evidence related to
those pregnancies, in part because of the extensive nature of the other
evidence tendered by Ms. Moossavi-Zadeh, which totals approximately 1200
pages. Ms. Moossavi-Zadeh asserts that such documentary evidence would not
have adversely affected her appeal, unless the IAD assumed that it may have
demonstrated that she and Mr. Yildirim did not intend to have children.
However, the IAD simply found that the failure to adduce evidence related to
the two pregnancies undermined the other evidence that was given with respect
to those pregnancies, and upon which Ms. Moossavi-Zadeh relied.
Particularly given that such other evidence was internally inconsistent, the
adverse inference drawn by the IAD was not unreasonable.
[22]
The IAD then identified a number of
inconsistencies and other shortcomings with respect to the testimony of Ms. Moossavi-Zadeh
and Mr. Yildirim regarding when their romance and feelings for each other
began. Once again, in the context of Ms. Moossavi-Zadeh’s application to
sponsor Mr. Yildirim for permanent residence in Canada as a member of the
spousal class, that was not a peripheral issue. I further note that the
inconsistencies in question were not only between the evidence of the two
individuals, but also in relation to different versions of events given by them.
[23]
It may very well have been the case that Ms. Moossavi-Zadeh
made a mistake, as she claimed, in describing the relevant dates in her written
application materials. Nevertheless, it was not unreasonable for the IAD to
have concluded that she had failed to provide a satisfactory explanation for
the inconsistencies and other shortcomings, particularly given the fact that
she had had time to reflect before completing her written application, which
had been submitted closer in time to when the events actually occurred.
[24]
It was also not unreasonable for the IAD to have
observed that both Ms. Moossavi-Zadeh and Mr. Yildirim had provided
dates in their written materials that were consistent with each other in their
inaccuracy, relative to the dates that they subsequently provided in their
testimony. Moreover, it was reasonably open for the IAD to have found that the
response provided by Mr. Yildirim when he was cross-examined with respect
to the inconsistencies in question was vague and unresponsive.
[25]
Ms. Moossavi-Zadeh also takes issue with the
IAD’s treatment of the evidence with respect to Mr. Yildirim’s Second
Wife, particularly regarding the IAD’s failure to address his explanation for
the timing of his divorce from her.
[26]
In the Decision, the IAD noted Ms. Moossavi-Zadeh
stated that Mr. Yildirim married his Second Wife in 2006, before he met Ms. Moossavi-Zadeh,
and that Ms. Moossavi-Zadeh stated that she had no problem with Mr. Yildirim
remaining married to his Second Wife, because he did not have sexual relations
with his Second Wife. However, the IAD proceeded to observe that, when
questioned about why he married his Second Wife on November 22, 2006, after he
professed his love to her (Ms. Moossavi-Zadeh), she stated that it was
because Mr. Yildirim was a man and had needs and she (Ms. Moossavi-Zadeh)
was not available to him from 2006 to 2008.
[27]
It was not unreasonable for the IAD to find that
Ms. Moossavi-Zadeh had not provided a satisfactory explanation for the
inconsistency between this latter testimony and her earlier testimony that Mr. Yildirim
married his Second Wife before Ms. Moossavi-Zadeh met him. It was also not
unreasonable for the IAD to find that Mr. Yildirim had been evasive in his
response to questioning on this issue, and had not provided a cogent
explanation for why his Second Wife wanted him to be her husband “on paper.” In this general context, the fact that Mr. Yildirim
may have had a reasonable explanation for the timing of his divorce from his
Second Wife was of relatively minor importance. In any event, given the facts
on the record, it was reasonably open to the IAD to question the genuineness of
Mr. Yildirim’s marriage to his Second Wife and to make an adverse
credibility finding against Mr. Yildirim and Ms. Moossavi-Zadeh.
[28]
Ms. Moossavi-Zadeh also maintains that the
IAD erred by failing to discuss documentary evidence that she adduced to
support her position that she and Mr. Yildirim began to cohabit on Welcher
Avenue in 2009, notwithstanding that they were each married to other people at
that time. That documentary evidence included affidavits from neighbours and
community members, as well as evidence that Mr. Yildirim received his
phone bills electronically, and therefore did not need to change the address to
which his paper invoices were being sent, namely, 663 Whiting Way.
[29]
The affidavits and letters of support, together
with solemn declarations, were explicitly mentioned, in a general way, towards
the end of the Decision, when the IAD was summarizing its findings. In my view,
it would have been preferable for that documentation to have been more explicitly
addressed in the Decision. However, on the facts of this particular case, I am
satisfied that the failure to discuss that evidence in more detail did not
render the Decision unreasonable. This is particularly so given the fact that the
evidence given by both Ms. Moossavi-Zadeh and Mr. Yildirim regarding
the timing of their cohabitation was inconsistent. It was reasonably open to
the IAD to refuse to accept Mr. Yildirim’s explanation that he was shocked
and under pressure when he stated to the CBSA in 2013 that he resided on Whiting
Way, and that he had lived there since he moved to Vancouver in 2005.
[30]
Ms. Moossavi-Zadeh also questioned the
reliance placed by the IAD on Mr. Yildirim’s past immigration history.
However, that history was very relevant to the issue of Mr. Yildirim’s
credibility, which was a central issue in the Decision. Among other things, the
evidence pertaining to that history included Mr. Yildirim’s admission that
he came to Canada illegally with the passport of another person; his
acknowledgement to the CBSA that he had made a fake refugee claim; and his subsequent
claim that he had expressed himself the wrong way because of the pressure
associated with having been arrested for the first time. It was reasonably open
to the IAD to give greater weight to the statements given to the CBSA than to
the later statements mentioned above, and to consider the former statements in
assessing Mr. Yildirim’s credibility. The same is true with respect to the
fact that Mr. Yildirim failed to follow his lawyer’s advice that he inform
immigration officials of the fact that he had moved to Vancouver from Montreal.
[31]
Ms. Moossavi-Zadeh further maintains that
the Decision placed inordinate focus on the first two years of her relationship
with Mr. Yildirim, namely 2006–2008, and did not materially address
evidence pertaining to the evolution of their relationship after 2008. I
disagree.
[32]
The IAD’s treatment of the period 2006–2008 went
to the issue of the development of the relationship between Ms. Moossavi-Zadeh
and Mr. Yildirim, which in turn was very relevant to the issues of the bona
fides of that relationship and the intentions of the couple at that time. In
any event, after treating the evidence pertaining to those years, the IAD
proceeded to discuss the evidence regarding Ms. Moossavi-Zadeh’s
pregnancies and abortions in approximately 2009, the ring that Mr. Yildirim
gave her in March of 2009, when he proposed to her; their living arrangements
during the period 2005–2013; the visits of Ms. Moossavi-Zadeh’s
mother and sisters in 2009 and 2010; the timing of their initial discussions of
Ms. Moossavi-Zadeh’s sponsorship of Mr. Yildirim for permanent
residence in Canada, shortly after their marriage at the end of 2012; the
visits that Ms. Moossavi-Zadeh made to Turkey after Mr. Yildirim went
back to that country in 2013; an interview that he gave to the CBSA in 2013;
his divorce from his Second Wife in 2012; the telephone bills that continued to
be sent to his address on Whiting Way after he claimed to have moved in with Ms. Moossavi-Zadeh
on Welcher Avenue; the marriage of Mr. Yildirim’s first wife to his
co-worker in 2013; and the evidence provided by Mr. Yildirim’s father
regarding their civil marriage in 2012 and his lack of awareness of their
religious marriage.
[33]
A related submission made by Ms. Moossavi-Zadeh
is that the IAD did not consider or sufficiently consider various items of evidence
that post-dated their civil marriage in December 2012. Insofar as much of that
evidence relates to whether the relationship between Ms. Moossavi-Zadeh
and Mr. Yildirim is now genuine, it is not relevant to the issue of
whether their relationship was entered into primarily for the purpose of
acquiring any status or privilege under the IRPA, as contemplated by paragraph 4(1)(a)
of the Regulations.
[34]
I recognize that some of the evidence that
post-dates the couple’s civil marriage may well have a bearing on the nature of
their respective intentions at the time of that marriage. However, I am
satisfied that the nature of the findings that were reasonably made with
respect to the credibility of Ms. Moossavi-Zadeh and Mr. Yildirim is
such that it was reasonably open to the IAD to then refrain from specifically
mentioning the evidence that Ms. Moossavi-Zadeh claims ought to have been
addressed in the Decision. This is particularly so given that the evidence in
question simply corroborates the fact that the marriage and alleged honeymoon took
place, that it was supported by family and friends, and that the couple’s relationship
continued to develop (through ongoing communications and Ms. Moossavi-Zadeh’s
visits to Turkey to visit Mr. Yildirim), to the point that their marriage
may well now be genuine.
[35]
An additional submission made by Ms. Moossavi-Zadeh
is that the IAD did not consider or reference evidence that corroborated the
evidence that she and Mr. Yildirim gave regarding the latter’s
relationship with Mr. Recep Gemlik and the couple’s knowledge of Mr. Gemlik’s
relationship with Mr. Yildirim’s first wife.
[36]
Mr. Gemlik was one of Mr. Yildirim’s
co-workers for two or three years. He allegedly was a friend of Mr. Yildirim’s
roommate on Whiting Way, who allowed Mr. Gemlik to use that address for
certain mail communications. Mr. Yildirim continued to allow Mr. Gemlik
to use his address for that purpose, after his roommate moved out. Apparently
unbeknownst to Mr. Yildirim, those communications included exchanges with Mr. Yildirim’s
first wife, whom Mr. Gemlik decided to marry, notwithstanding that he had
a girlfriend and a child at that time.
[37]
The evidence that Ms. Moossavi-Zadeh
alleges was not considered includes a transcript of Mr. Gemlik’s interview
with a representative of the CBSA, as well as affidavit evidence provided by
Mr. Gemlik and his co-workers. Those affidavits state that Mr. Gemlik
did not reside at Mr. Yildirim’s address on Whiting Way, and that he and Mr. Yildirim
were only co-workers who interacted once in a while.
[38]
I am satisfied that the affidavits of Mr. Gemlik
and his co-workers were among the affidavits and other evidence explicitly
referenced by the IAD at paragraphs 53 and 54 and of its Decision.
[39]
In my view, the nature of the credibility
findings that were reasonably made by the IAD with respect to the testimony
provided by Ms. Moossavi-Zadeh and Mr. Yildirim was such that the IAD
was not obliged to specifically address the contents of the affidavits of Mr. Gemlik
and his co-worker. In other words, having reasonably found that the evidence of
Ms. Moossavi-Zadeh and Mr. Yildirim was so “convoluted
and at times internally inconsistent,” as to be not credible or
trustworthy (Decision, paragraphs 49 and 55), it was unnecessary for the
IAD to specifically note that some aspects of their inconsistent evidence had
been corroborated by third parties, including Mr. Gemlik and his
co-workers. It was sufficient for the IAD to refer to that third party evidence
in the general manner that it did, at paragraphs 53 and 54 of its lengthy Decision.
This is particularly so given what the IAD reasonably characterized as being “the very improbable circumstances of the serendipitous
connection between [Mr. Gemlik] and the applicant’s first wife” and
his two unsuccessful sponsorships of her for permanent residence in Canada. On
the particular facts of this case, it was reasonably open to the IAD to
disbelieve the evidence of Mr. Yildirim and Mr. Gemlik regarding the
genuineness of the latter’s marriage to the former’s first wife.
[40]
Among other things, the inconsistencies in the
testimony of Ms. Moossavi-Zadeh and Mr. Yildirim concerning his first
wife related to Ms. Moossavi-Zadeh’s knowledge of the contact between Mr.
Yildirim and his first wife, the nature and extent of the communications
between Mr. Yildirim and his first wife, and his first wife’s knowledge of
where he lived.
[41]
The IAD also found that Mr. Yildirim’s evidence
regarding his knowledge of his first wife’s desire to move to Canada was not
credible. This finding was not unreasonable, particularly given that Mr. Yildirim
had been in regular contact with his sons as well as with his first wife, and
given that there were important inconsistencies in Mr. Yildirim’s
testimony regarding the extent of his contact with his first wife, and her
knowledge of where he lived.
[42]
I will simply note in passing that, in his
interview with the CBSA, Mr. Gemlik acknowledged that he proposed to Mr. Yildirim’s
first wife on the same day that they met, that he could not recall when he
proposed to her or when they were married, and that he did not know whether
they were still married.
[43]
In her written materials, Ms. Moossavi-Zadeh
also submitted that the IAD failed to conduct a de novo hearing, as it
is required to do (Castellon Viera v Canada (Citizenship and Immigration),
2012 FC 1086, at para 10). However, at the hearing of this
Application, her counsel clarified that Ms. Moossavi-Zadeh simply meant
that the IAD had not sufficiently considered the evidence that I have now
addressed in these reasons above. Accordingly, there is nothing further to be
considered in this regard.
[44]
Ms. Moossavi-Zadeh further asserts that the
IAD erred by failing to presume the truthfulness of the testimony that she and
Mr. Yildirim gave. However, that presumption fell away as soon as the IAD
made adverse credibility findings with respect to important aspects of their
testimony.
[45]
Finally, Ms. Moossavi-Zadeh submits that
the IAD erred by failing to consider important evidence that contradicted the
conclusions that it reached regarding her and Mr. Yildirim’s intentions at
the time of their civil union in December 2012, and regarding the genuineness
of their marriage. The evidence in question is the evidence that I have already
addressed in these reasons for judgment above. It is therefore unnecessary to
address it again.
VIII.
Conclusion
[46]
For the reasons set forth above, this
application is dismissed.
[47]
The Decision was not unreasonable, either as a
whole, or for any of the reasons advanced by Ms. Moossavi-Zadeh.
[48]
In my view, it was not unreasonable for the IAD
to have concluded, after a fairly extensive assessment of the testimony
provided by Ms. Moossavi-Zadeh and Mr. Yildirim, and having regard to
the documentary evidence, that Ms. Moossavi-Zadeh had not met her burden
of establishing on the balance of probabilities that her marriage to Mr. Yildirim
was not entered into primarily for the purpose of acquiring any status or
privilege under the IRPA.
[49]
That conclusion fell well within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law. It also fit comfortably within the principles of justification,
transparency and intelligibility.
[50]
The parties did not suggest a question for
certification. Given the highly fact-specific nature of the findings reached by
the IAD, I find that no such question arises from its Decision.
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