Docket: IMM-2846-17
Citation:
2018 FC 101
Ottawa, Ontario, January 30, 2018
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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TESSY IGIEWE
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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, Tessy Igiewe, seeks judicial
review, under s 72 of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA), of a decision of the Immigration Appeal Division (IAD) dated
May 25, 2017, wherein her appeal of a visa officer’s decision was dismissed.
The visa officer had found that the Applicant’s marriage to Andre Palmer, a
Jamaican citizen, was not a genuine marriage or was entered into primarily for
the purposes of acquiring status or privilege in Canada.
[2]
The Applicant and Mr. Palmer first met while the Applicant was visiting
friends in Jamaica in 2008 and later cohabited for 4 months in 2009. The
Applicant has been to Jamaica several times and has financially supported Mr.
Palmer over the years.
[3]
Mr. Palmer had married Samantha McFarlane, an American citizen, in January 2007. In 2010,
Ms. McFarlane attempted to
sponsor Mr. Palmer for entry to the United States of America (USA). The
sponsorship was refused. The US immigration authorities concluded that Mr.
Palmer and Ms. McFarlane had entered into marriage for him to obtain
immigration status and had misled the authorities. During the proceedings
before the IAD, Mr. Palmer said that he had used Ms. McFarlane in an effort to
get closer to the Applicant via the US. Mr. Palmer and Ms. McFarlane divorced
in 2011.
[4]
The Applicant and Mr.
Palmer were married in 2013 and an application for spousal sponsorship was
filed in February 2015. A child was born to the Applicant in December 2016. No
proof of paternity was offered but neither the visa officer nor the IAD
questioned that Mr. Palmer was the father and he is named as such in the
child’s birth certificate.
[5]
In a letter dated February 26, 2015, the visa
officer refused the application on the basis that it was not a genuine marriage
or was entered into primarily for the purposes of acquiring status or privilege
under the IRPA pursuant to s 4(1) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (IRPR).
[6]
The officer based the decision largely on the
facts of the marriage with the American citizen. Once his sponsorship application for the USA was
refused, the visa officer noted that Mr. Palmer resumed his relationship with
the Applicant. The visa officer concluded that it appeared that Mr. Palmer was
manipulating the Applicant in order to obtain admission to Canada via the
family class route. At one point, she had withdrawn her application to sponsor
him because of concerns about his fidelity and abuse of her financial support.
[7]
The IAD found, on appeal, that the Applicant failed to establish on
the balance of probabilities that Mr. Palmer did not enter into the marriage
for the primary purpose of gaining status of privilege in Canada pursuant to s
4 of the IRPR. The IAD found that the couple lacked credibility. There were
multiple areas in which their evidence was contradictory, made no sense or was
rehearsed, in the IAD’s view.
[8]
The IAD noted contrary statements made by Mr.
Palmer in his interview with the visa officer and his testimony on appeal
before the IAD. In particular, the IAD considered that he changed his story on
important aspects to benefit the appeal, such as his involvement in his first
marriage of convenience and his remorse for his actions. He could not explain
the inconsistencies. The IAD found that this weighted heavily against his
credibility.
[9]
Mr. Palmer had also initially lied on his
application for entry to Canada. He indicated that he
was not refused admission to any other country and when confronted about his
prior application to the USA with his first wife, stated that he was “trying to forget about that” and that he “didn’t know that the whole US thing would come up [and he
didn’t] know that US and Canada are linked like that.” The IAD noted
that the object of the omission was to bolster his Canadian immigration
application. The IAD held that Mr. Palmer had tried on several occasions and
under false pretenses to gain entry to the USA or Canada. In the IAD’s view,
this was an indicator that his primary intent was to acquire status or
privilege in Canada.
[10]
There was also, in the IAD’s view, an
inconsistency with regards to Mr. Palmer’s evidence about where he would live
if he came to Canada; whether it would be with the Applicant and their child or
with his aunt. The IAD also considered that he had made limited efforts to spend
time with the Applicant when she was in Jamaica, despite the fact that he was
being financially supported by her, and referred to events involving his American
wife when asked about the relationship with the Applicant.
[11]
There is no dispute between the parties and I
agree that the standard of review is reasonableness: Gill v Canada (MCI), 2012 FC 1522, at para 17; Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras 47-48.
[12]
The only issue on this application is whether
the IAD’s decision is reasonable.
[13]
The Applicant’s argument is essentially that the IAD erred in assessing the
credibility of the witnesses and in ignoring relevant evidence. The Respondent
submits that the IAD reasonably assessed the evidence, including the witness’s
testimony.
[14]
In
my view, it was reasonable for the IAD conclude that the marriage was entered into
for the primary purpose of immigration and that the marriage was not genuine –
at least not from the perspective of Mr. Palmer. The IAD viewed the Applicant’s
testimony with sympathy but found that it also lacked credibility in some
important respects.
[15]
The finding of facts by the IAD is owed a high
degree of judicial deference given the IAD’s opportunity to hear and observe
the testimony of the witnesses before it: Thach v Canada (MCI), 2008 FC
658, at paras 15-19; Valencia v Canada (MCI), 2011 FC 787 at para 25 [Valencia].
As discussed in Grewal v Canada (MCI), 2003 FC 960, at para 9 [Grewal]:
The Board is
entitled to determine the plausibility and credibility of the testimony and
other evidence before it. The weight to be assigned to that evidence is also a
matter for the Board to determine. As long as the conclusions and inferences
drawn by the Board are reasonably open to it on the record, there is no basis
for interfering with its decision. Where an oral hearing has been held, more
deference is accorded the credibility findings.
[16]
The Applicant’s disagreement with the IAD’s
findings does not make them unreasonable and it is not the role of this Court
to reweigh the evidence.
[17]
It was open to the IAD to reject Mr. Palmer’s
explanation that he had lied to immigration officials about his US application
in order to be closer to the Applicant. And the inference that he had entered
into marriages with two North American women at the same or overlapping times
in order to gain entry into one country or the other was reasonable on the
evidence.
[18]
There may have been some confusion over Mr.
Palmer’s evidence about where he would live when he came to Canada. But this
stemmed from Mr. Palmer’s own spontaneous statement, as recorded in the
transcript. He then clarified his meaning by saying he would ask his aunt if he
could stay with her “until I sort out myself to get our
own place for me and [the Applicant].”
[19]
Even if the IAD misconstrued Mr. Palmer’s
initial reply to the question, the other contradicting,
confusing and inaccurate statements made during his oral testimony sufficiently
demonstrated a lack of credibility.
[20]
The IAD was attentive to the testimony of
Nichole Green, a friend of the Applicant. It noted the following:
[40] […] I appreciate Nichole wants to
support her friend however it became clear to me through her testimony that she
does not have the full story. I do not doubt this witness’ credibility and it
did confirm that this marriage appears to be genuine from the appellant’s
perspective. This however does not alleviate my concerns with regards to the
applicant and the fact that the appellant’s best friend did not know they
pursued the USA sponsorship, also reveals to me that the appellant does not
tell her best friend everything. The third witness” testimony weighs negatively
in my assessment on the genuineness of the marriage.
[21]
In my view, the IAD’s finding that Ms. Green’s
evidence weighed against the genuineness of the marriage is a finding of fact
based on her oral testimony and is owed a high level of deference: Grewal, above,
at para 9; Valencia, above, at para 25.
[22]
Similarly, the finding that letters of support
from Jamaican friends and the Applicant’s sister and friends, while worthy of
consideration, carried little weight was open to the IAD. It was clear to the
IAD that these friends and family members had little knowledge of the extent to
which Mr. Palmer had gone to leave Jamaica for a better life in another
country.
[23]
The fact that the IAD mentioned some but not all
of the letters in its reasons does not, in itself, constitute reversible error.
The tribunal was not required to mention in detail all of the evidence
submitted: Tjavara v Canada (Citizenship and Immigration), 2010 FC 960,
at para 8.
[24]
As stated by the Supreme Court of Canada in NLNU v Newfoundland & Labrador
(Treasury Board), 2011 SCC
62, [2011] 3 S.C.R. 708:
[16] Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either the
reasons or the result under a reasonableness analysis. A decision maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion (Service Employees'
International Union, Local No. 333 v. Nipawin District Staff Nurses Assn.,
[1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the
reviewing court to understand why the tribunal made its decision and permit it
to determine whether the conclusion is within the range of acceptable outcomes,
the Dunsmuir criteria are met.
[25]
With regard to the birth of the child, the IAD
concluded that this in itself did not demonstrate that the marriage was genuine
given the other contradictions and inconsistencies in the evidence. In the
circumstances, it was reasonable for the IAD to find that the child’s birth was
not determinative. This was a case where the credibility issues “overshadowed the evidence concerning the child”: Lamichhane v Canada (Minister of
Citizenship and Immigration), 2016 FC 957, at para 14.
[26]
In the result, I am satisfied that the IAD’s
decision is reasonable as it is transparent, intelligible and justified and
falls within the range of acceptable outcomes.
[27]
No serious questions of general importance were
proposed for certification.
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