Docket: IMM-3023-17
Citation:
2018 FC 8
Montréal, Quebec, January 8, 2018
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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JOSEPH KOBBI
COBINA
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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
[1]
The applicant, Joseph Kobbi Cobina, is a citizen
of Ghana who has a checkered immigration history in Canada. He also has a
checkered marital history. It is the combination of these which gives rise to
the present application for judicial review of a decision of the Immigration
Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB).
[2]
The IAD’s decision confirmed an earlier decision
of the IRB’s Immigration Division which refused to issue a permanent resident
visa (as a member of the family class) to the applicant’s current spouse, Janet
Opoku. The basis for the IAD’s decision was that Ms. Opoku was excluded from
the family class pursuant to s. 117(9)(d) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [IRPR] because her sponsor (the
applicant in this case) had previously made an application for permanent
residence and became a permanent resident and, at the time of that application,
Ms. Opoku was a non-accompanying family member of the sponsor and was not
examined.
[3]
There is no dispute concerning the
interpretation of s. 117(9)(d) of the IRPR. There is also no dispute
that Ms. Opoku was not examined in the context of the applicant’s permanent
residence application. The dispute concerns whether Ms. Opoku was a family
member of the applicant at the time he applied for permanent residence in
Canada. Specifically, the applicant disputes the IAD’s conclusion that, on a
balance of probabilities, he and Ms. Opoku were in a common law relationship at
that time.
[4]
Let me begin by detailing the applicant’s
checkered marital history. The applicant has been married three times. He first
married Grace Otiwaa Marfo in 1998 in Ghana. They had two children. This marriage
ended in divorce in 2002.
[5]
Later in 2002, the applicant married for the second
time, this time to Rondell Marilyn Nicholls, a permanent resident of Canada.
This second marriage ended in divorce in 2009, though the two parted ways in
2006. No children resulted from the applicant’s second marriage. However, it is
important to note that both the applicant and his second wife (Ms. Nicholls)
had children with other partners during the time they were married to one
another. In the applicant’s case, he fathered a son (Joshua) in 2003 and a
daughter (Esther) in 2007 with Ms. Opoku (who would later become his third
wife).
[6]
The applicant married Ms. Opoku in 2009. It is
agreed that they had a relationship beginning in 2002. The dispute on the facts
comes from the applicant’s claim that he ended his relationship with Ms. Opoku
around the end of 2002 and was unaware that he had fathered Joshua until 2005
or 2006. He claims he was told of Joshua in 2005, but only came to recognize
him as his son in 2006 when he resumed his relationship with Ms. Opoku.
[7]
The issue of whether Ms. Opoku and the applicant
ended their relationship in 2002 before resuming it in 2006 is important
because it determines whether they were in a common law relationship when the
applicant made his permanent residence application, and hence whether Ms. Opoku
is excluded from the family class.
[8]
Having described the applicant’s checkered
marital history, I turn now to his checkered immigration history.
[9]
The applicant came to Canada from his native
Ghana in 2002 claiming to be following up on business contacts. However, while
here, he entered into his second marriage (with Ms. Nicholls). He returned to
Ghana sometime later in 2002. In early 2003, the applicant filed his
application for permanent residence and Ms. Nicholls filed an application to
sponsor him. The applicant’s marriage to Ms. Nicholls and subsequent permanent
residence application were noted when the applicant sought to re-enter Canada
in 2003. The applicant claimed again that the purpose of his visit was business,
though he could not provide adequate evidence of his dealings. Moreover, he
knew little about Ms. Nicholls, and denied repeatedly that he had a pending
application for permanent residence in Canada. As a result, a customs officer
concluded that the applicant was not credible and that his marriage to Ms.
Nicholls was one of convenience. The applicant was ruled inadmissible to Canada
for two years. These conclusions are not disputed.
[10]
Despite the applicant’s lengthy separation from
Ms. Nicholls, her sponsorship of the applicant’s permanent residence
application was eventually successful in 2006. However, their reunion did not
last long. When the applicant arrived in Canada, each told the other of their
children produced with other partners, and they agreed to split. The applicant
returned to Ghana later in 2006 and resumed his relationship with Ms. Opoku. It
should be repeated at this point that the applicant argues that, though he was
aware of Joshua at the time he entered Canada as a permanent resident, he had
not recognized the boy as his son until after returning to Ghana.
[11]
We jump now to 2011 when Ms. Opoku filed an
application for permanent residence and the applicant filed an application to
sponsor her. In an interview with an immigration official in 2012 concerning
her application, Ms. Opoku indicated that she had been in a relationship with
the applicant continuously from 2002 until the applicant obtained his permanent
residence in Canada. As indicated above, this statement supports the conclusion
that Ms. Opoku is excluded from the family class as a non-accompanying family
member of the sponsor at the time he applied for permanent residence.
[12]
The applicant asserts that Ms. Opoku was lying
when she made this statement. The applicant argues that she was embellishing
her story, trying to avoid a finding that her marriage to the applicant was not
genuine (as the applicant’s previous marriage had been found to be). The
applicant also argues that Ms. Opoku wished to avoid the stigma associated with
having a child by a man who was married to another woman. The applicant relies
on supporting statements from a number of family members and acquaintances. The
applicant asserts that he did not see Ms. Opoku at all during the period from
the end of 2002 until his return to Ghana in 2006.
[13]
The IAD was faced with a choice between two
conclusions:
(i)
believing that Ms. Opoku was telling the truth
in her 2012 interview, and that subsequent statements to the contrary are
untrue, such that she was indeed in a relationship with the applicant when he
applied for permanent residence in Canada, and is therefore excluded from the
family class; or
(ii)
believing that Ms. Opoku was lying in her 2012
interview, and that the subsequent statements are true, such that she is not
excluded.
[14]
The gist of the applicant’s argument in the
present judicial review is that it was unreasonable for the IAD to reach the
first conclusion.
[15]
On the evidence, there was a basis (not least in
the form of Ms. Opoku’s own testimony) for disbelieving the subsequent
statements. The IAD also noted the implausibility of the applicant’s story that
he did not see Ms. Opoku at all during the period in question. They lived in
the same suburb of Accra and had close family connections (her brother and his
sister were married or in a common-law relationship). The IAD rejected the
applicant’s explanation that he was often away on business on the basis that he
had custody of his two children from his first marriage during that time and
could not have been away very often. I am not convinced that it was
unreasonable for the IAD to prefer Ms. Opoku’s 2012 statement, particularly in
the case of this applicant, who has a history of misrepresentation before
Canadian immigration officials.
[16]
As regards the IAD’s reasons, I disagree with
the applicant’s argument that the IAD did not adequately address all of the
evidence he put forward to believe that Ms. Opoku had been lying in her 2012
interview. The IAD addressed the broad lines of the applicant’s current story.
The IAD was not obliged to make explicit reference to every item of evidence
relied on by the applicant. I am not convinced that the IAD failed to consider
any important evidence.
[17]
The majority of the applicant’s arguments in his
memorandum-in-chief concerned alleged violations of his rights under the Canadian
Charter of Rights and Freedoms and various international agreements. None
of these arguments was addressed in the applicant’s oral submissions. The
applicant did not even respond to the respondent’s various counter-arguments on
these points. The applicant’s arguments on these points were not
particularized, nor were they supported by any cited jurisprudence. I am
inclined to agree with the respondent’s submission that these arguments serve
mainly to distract from the principal issues in dispute in the present
application. Suffice it to say that I find no merit in these arguments.
[18]
I conclude that the present application should
be dismissed. The parties are agreed that there is no serious question of
general importance to be certified in this case.
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