Docket: IMM-4694-11
Citation: 2012 FC 415
Ottawa, Ontario, April
12, 2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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MOHAMED SALAHUDEEN KHAN
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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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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board), dated June
15, 2011, which dismissed the applicant’s appeal of the refusal of the
application for permanent residence by his wife, Bibi Razela Khan (Razela),
pursuant to section 63(1) of the Immigration and Refugee Protection Act,
SC 2001,
c 27
(IRPA).
For the reasons that follow, the application is dismissed.
Facts
[2]
The
applicant is a citizen of Guyana and a permanent resident of Canada, having been
sponsored by his daughter. He has four children from a relationship with his
former common-law spouse. The applicant states that he met Razela on June 15,
2004 in Guyana. They began
telephoning each other and taking walks together. Their relationship became
sexually intimate in February 2005. She moved to an apartment closer to him in
August 2005 and they saw more of each other. After her apartment was broken
into in September 2005, she moved into the applicant’s father’s home, where the
applicant also lived. However, while sexually intimate, their relationship was
not exclusive and, in the applicant’s testimony before the Board, Razela was
best characterized as a roommate, not as a live-in partner. Both had other
partners
[3]
The
applicant arrived in Canada on June 16, 2006. Prior to his arrival he
helped Razela find a new apartment and secured it with three months’ deposit.
She asked an Imam to bless the apartment, which he said he would only do if the
couple committed to each other and asked forgiveness for her sinful lifestyle
through a Nikkah (religious marriage) ceremony. Thus, 12 days prior to his
departure from Canada they participated in the ceremony, but never
legally registered the marriage or considered themselves married at that time.
[4]
The
applicant stated he was lonely when he came to Canada and missed
Razela. His children in Guyana told him that she was going out with other
men which made him jealous. He then asked three other women from previous
relationships if they would marry him and join him in Canada. Two
refused, but Lilowtie Mohabir accepted and the two were married in December
2006. However, their relationship broke down after less than a month and the
applicant states he still had feelings for Razela.
[5]
In
February 2007, the applicant confronted Razela about the rumours she had seen
other men and she assured him it was not true. The two became friendly again
and he began to see her as a potential wife. They stayed in contact when he
went back to Canada and in May
2007 he asked her to marry him. They were married on October 15, 2007.
[6]
The
applicant applied to sponsor Razela and that application was refused in
February 2009. The applicant appealed and the appeal was heard on October 8,
2010 and June 3, 2011. Razela was not called as a witness although the
transcript of a brief interview at the High Commission was before the Board.
Decision Under Review
[7]
The
Board found that the applicant was not credible as he gave inconsistent,
incoherent and confusing testimony. The Board found that he embellished and
adjusted his testimony to try and make sense of his actions.
[8]
In
its decision the Board focused a great deal on the inconsistent way that the
applicant described the nature of his relationship with Razela; he stated they
were just friends who slept together, which the Board found inconsistent with
the fact that the Nikkah ceremony was performed. The Board did not accept the
applicant’s explanation of the ceremony that it was to appease Razela’s Imam.
[9]
The
Board also found it confusing for the applicant to claim that he married
another woman because the relationship with Razela had broken down when by his
account they did not have a committed relationship at the time. The Board took
further issue with the applicant giving Razela power of attorney in February
2007, so soon after they had allegedly reconciled. The Board also noted that
the applicant and Razela referred to each other as husband and wife in
correspondence before they were legally married. The Board rejected the
explanation that this was just “in fun”, and made a negative credibility
finding.
[10]
The
Board acknowledged evidence of the applicant’s travel to Guyana, telephone
bills and evidence of joint assets and money transfers. However, the Board
found that the contradictions and discrepancies outweighed this evidence and
concluded that the applicant had failed to establish that the marriage was
genuine and was not entered into primarily for the purposes of acquiring status
under the IRPA. The appeal was therefore dismissed.
Issue
[11]
The
only issue raised by this application is whether the Board’s decision was
reasonable.
Analysis
[12]
Notwithstanding some errors in the Board’s reasoning, and
despite the very able argument on the part of counsel for the applicant, I find
that the decision as a whole is reasonable and therefore the application must
be dismissed.
[13]
The Board erred in its consideration of some of
the evidence. For example, the Board relied on portions of the
correspondence between the applicant and Razela to conclude that the marriage
was not genuine because the couple referred to each other as “husband” and
“wife” before they were legally married. The Board stated at paragraph 18 of
its decision:
Confronted with this inconsistency, the [applicant] stated
that they referred to each other this way « for the sake of fun ».
Although the [applicant] maintained that they were just friends before he came
to Canada, he did not explain in a coherent and satisfactory manner why then,
they were referring to each other as husband and wife in the letters they wrote
to each other before their alleged marriage on October 15, 2007. The
discrepancies in the evidence affect the [applicant’s] credibility…
[14]
The applicant stated that he and Razela were “just friends”
the year before the correspondence in which they refer to each other as
“husband” and “wife”. Thus, the Board has misconstrued the timeline and
in consequence found an inconsistency when none existed. Also, the Board
referred to the couple’s “alleged marriage”, but never marked a clear finding
that the couple did not marry on October 15, 2007.
[15]
However, while the Board committed some errors in its
reasoning, I cannot find that these errors render the decision unreasonable. In
other words, even if any, or all, of those errors had not been made, I cannot
find that the outcome would have been different; principally because the Board
found that the applicant’s testimony was not credible.
[16]
The Board found that the applicant was
neither truthful nor straightforward and that he adjusted his
testimony to try and make sense of his actions. Since the Board member had the
advantage of hearing the testimony and observing the applicant’s demeanor, the
Court must be deferential regarding her credibility findings, so long as they
were reasonably open to her. Given the unusual narrative presented by the
applicant and the Board’s finding that he was inconsistent and incoherent in
his testimony, it was reasonably open to the Board to reject the applicant’s
evidence and conclude that he had not proven the marriage to be genuine. The
Court therefore, has no basis to intervene and the application must be
dismissed.
[17]
Finally,
as the Court noted at the conclusion of the hearing, the adversarial system
requires active participation from both parties. It is not sufficient to point
to the standard of review and hope that deference will win the day. The Court
depends, in both oral and written argument, on the engagement of both parties
to ensure that the adversarial process functions as intended.
[18]
The
application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review be and is hereby dismissed. No question for certification has been
proposed and none arises.
"Donald
J. Rennie"
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