Date:
20121029
Docket:
IMM-1459-12
Citation:
2012 FC 1251
Toronto, Ontario, October 29, 2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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SANDRA YEOTELY LARYEA
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Applicant
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and
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THE MINISTER OF CITZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
The
present Application is a review of a Decision of the Immigration Appeal
Division (IAD) on an appeal brought to it by Ms. Laryea, a Canadian citizen,
with respect to the rejection by a visa officer of her sponsorship of the
permanent residence application of her husband, Theophilus Tettey Sarpei, a
citizen of Ghana. The issue before the visa officer was whether the evidentiary
burden had been discharged to prove that Ms. Laryea’s and Mr. Sarpei’s marriage
was genuine and not entered into primarily for acquiring immigration status for
Mr. Sarpei.
[2]
On
the basis of a negative finding of credibility, the visa officer rejected Mr.
Sarpei application. A primary feature of this finding was that Mr. Sarpei did
not answer as expected to questions with respect to his knowledge of his wife’s
continuing relationship with the father of her children that she brought into
the marriage.
[3]
In
reaching the Decision presently under review, the IAD fully considered the
evidence before the visa officer and the visa officer’s conclusion on the
evidence. The IAD heard extensive evidence from Ms. Laryea about the
relationship leading to the marriage, however, Mr. Sarpei was not called to
give evidence at the hearing. Thus, the only evidence from him before the IAD
was that given to the visa officer. However, under direct questioning by the
Hearings Officer for an explanation of her husband’s conduct before the visa
officer, Ms. Laryea gave detailed evidence in response.
[4]
In
the result, the IAD found that Mr. Sarpei should have been able to answer the
visa officer’s questions, and because Ms. Laryea did not call him to testify on
the appeal to answer those same questions, the IAD drew an adverse inference
with respect to Ms. Sarpei’s absence. This finding ultimately resulted in a
rejection of the appeal.
[5]
The
issue for determination is whether the IAD erred in drawing the adverse
inference.
I. The Evidentiary Context
with Respect to the Relationship
[6]
In
paragraphs 14 to 19 of the Decision the IAD describes the factual context with
respect to the issue for determination:
At
the hearing, the Appellant described the development of her relationship with
the Applicant. Her evidence in this regard is as follows: the Appellant and
Applicant are distantly related to each other and shared a close friendship
with each other during childhood; the Appellant lost contact with the Applicant
for a couple of years after her immigration to Canada in 1991 but their mothers
continued to communicate with each other by telephone; the Appellant visited
Ghana in 1999 and reconnected with the Applicant during this trip; the
Appellant financed the Applicant's university education, which he completed in
2005; and sometime in 2005 to 2006, the Applicant advised the Appellant that he
had romantic feelings for her. The Appellant testified that she jokingly
discussed the possibility of marriage with .the Applicant in 2006, after her
relationship with her former boyfriend had ended and she was having difficulty
raising her eldest son as a single parent. The Appellant further stated that
she began to take the Applicant's romantic interest in her more seriously in
2007 and decided to marry the Applicant at this point. The Appellant testified
that she and the Applicant participated in a customary wedding celebration on
May 15, 2008 and that they entered into a civil marriage on May 22, 2008.
There
is ample evidence in this case to support the Appellant's testimony that she
and the Applicant had a close emotional relationship prior to marriage. Counsel
for the Minister conceded in his submissions that the Appellant and Applicant
do have a relationship together but he contends that this relationship is one
more similar to that between siblings. The panel accepts that the Appellant and
Applicant are related to each other distantly and that they share a close
emotional bond together. The issue in this case remains whether the Appellant
and Applicant's marriage is genuine and was not entered into primarily for the
purposes of facilitating the immigration of a close friend or family member,
being the Applicant.
The
Appellant gave birth to her youngest son in February 2008 and she testified
that both of her children have the same father. The Appellant's evidence is
that her relationship with her former boyfriend ended in 2006 but that she
maintained a similar social circle with him. The Appellant stated that, in
2007, she attended a birthday party that was also attended by her former
boyfriend and that she ended up having sexual relations with him during that
night. She stated that this incident was casual in nature and indicated that
this was an isolated event. The Appellant testified that her pregnancy with her
youngest child resulted from this night and that the Applicant was upset with
her when she told him about the incident. The Appellant explained that the
Applicant ultimately forgave her prior to the birth of her youngest son and
that they resumed their plans for marriage.
The
Appellant's evidence is that she made plans for her wedding to occur in May
2008 and that she had sent a number of items to Ghana for the purposes of her
wedding festivities. The Appellant stated that her wedding plans were
interrupted by the death of a close family member and that all of the items
that she had sent to Ghana for her wedding were used for the funeral rites. She
stated that, once she was in Ghana in May 2008, she suggested to the Applicant
that they should still marry on the planned date and that they held a simple
wedding celebration.
At
the interview, the visa officer questioned the Applicant regarding the
Appellant's relationship with the father of her youngest child." The
Applicant informed the visa officer that he had asked the Appellant why her
relationship with the father of her child had broken down but that she would
not tell him. The visa officer asked the Applicant whether the Appellant still
saw the father of her child and, in response, the Applicant advised the visa
officer that he did not know. The visa officer concluded that the Applicant had
little knowledge of the Appellant's life.
The
Applicant did not testify at the hearing. According to the Appellant, the
Applicant is employed as a deputy postal manager and was on assignment in the
northern part of Ghana on the day of the hearing. The Appellant stated that the
Applicant was not accessible to telephone signals in this part of Ghana and that he could not make alternative arrangements to testify at the hearing because
of his work duties. Counsel for the Minister argued that the Applicant should
have been made available for testimony since he was given advanced notice of
the hearing date. Further, counsel for the Minister noted that a request for an
adjournment of the hearing was not made by the Appellant so that she could be
given another opportunity to call the Applicant as a witness.
[7]
During
the course of the hearing the Hearings Officer closely questioned Ms. Laryea as
to why Mr. Sarpei responded as he did to the visa officer’s questioning about
their relationship. Her answers were detailed and based on her knowledge of her
husband acquired before the interview with the visa officer, and after the
interview arising from her conversations with her husband. Two main
explanations emerged from the questioning which are documented in the
transcript of the hearing before the IAD. First, the birth of Ms. Laryea’s
second child was a very sensitive topic for Mr. Sarpei, and he simply could not
and would not discuss it with the visa officer: “he probably already shut down”
and “he just clamed up” (Transcript, pp. 42 – 43) and “it was …uncomfortable
memory for him” (Transcript, p. 52). And second, for Mr. Sarpei, it is
culturally inappropriate to discuss such private matters with a stranger even
if she is in a powerful position: “its just in our culture…you don’t exhibit
your dirty laundry…we are raised a certain way”, and “it isn’t something that
comes easily, discussing your dirty laundry with a stranger, even if she is the
Immigration” (Transcript, p. 52).
II. The Adverse Inference
Finding
A. Breach of the duty
of fairness
[8]
The
IAD’s adverse inference finding is stated in paragraph 23 of the Decision:
In
this case, there is critical information that only the Applicant could speak to
in testimony. The Appellant had a sexual relationship with her former boyfriend
during the purported time of her romantic relationship with the Applicant and a
child was born from her sexual encounter with her former boyfriend, just three
months before her marriage to the Applicant. The visa officer noted as a concern
that the Applicant failed to illustrate how the Appellant's relationship with
the father of her two children fit into the progression of his relationship
with the Appellant and, according to the information that the Applicant
provided to the visa officer, the Applicant did not know whether the Appellant
saw the father of her children. The Appellant described the events surrounding
her relationship with her former boyfriend and she testified that the Applicant
ultimately forgave her for her sexual liaison with her former boyfriend. She
further stated that the Appellant did not provide these details to the visa
officer at the interview because he probably "shutdown" due to his
bad memories related to the Appellant's sexual relationship with her former boyfriend
in 2007 (when the Appellant's youngest child was conceived). The timing of
events is important in understanding the development of the Appellant and
Applicant's relationship up to the point of marriage in May 2008 and the
Applicant should have explained why he did not provide details to the visa
officer when given the opportunity to do so at the interview. Also of
importance in this case is the Applicant's own testimony regarding his
motivations for entering into marriage with the Appellant in May 2008. The
panel draws a negative inference from the Applicant's failure to be called and
address these concerns.
[Emphasis
added]
[9]
It
is clear that, regardless of the undisputed evidence that Mr. Sarpie was not
available to appear before the IAD on the date of the hearing, the fact that
Ms. Laryea did not ask for an adjournment lead to the adverse inference
finding. In the course of argument before the IAD, Counsel for Ms. Laryea
explained that an adjournment was not requested for the following reasons:
Now,
the Appellant ... the Applicant is not here to testify. We couldn't get him to
testify. Madam Member, you've heard the
circumstances surrounding his employment and that he's in some part of the
country, Ghana, where phone reception's very ... more or less, very difficult
to go through. Yes, we had the opportunity to have had this case carried on to
another date. Sandra, Madam Member, the Appellant and the Applicant, both of
them have been waiting over two years to have this case heard today, over two years.
This had been canvassed with my client, and the response was, "No, no. I
want this case done, done with today.
Done." Yes. This is ... this is how much she wants her husband here. So
there ... the fact that we didn't get the Applicant to testify today, Madam
Member, it's very troubling for us to draw a negative ... a negative inference
on that, to shed doubt or to undermine the credibility of the evidence before
you. Sandra, the Appli ... the Appellant has responded to all the concerns that
have I been raised in the record. And there isn't much anyways. She has
adequately ... the Appellant has adequately responded to the concerns, the
problems that arise in the record.
(Transcript
p. 65)
[10]
There
is no evidence on the record before the IAD to raise a suspicion that Mr.
Sarpei was unavailable in order to avoid testifying. In any event, it is
apparent from the IAD’s reasons that such a suspicion was active in rendering
the decision. In my opinion, for the IAD to not have given notice of such a
suspicion on the facts of the present case was unfair. Notice should have been
given to Ms. Laryea before the decision was rendered that, without Mr. Sarpei
presenting himself for examination with respect to what transpired before the
visa officer, the appeal would be dismissed. In my opinion, to not provide Ms.
Laryea with an opportunity to reconsider applying for an adjournment to allow
Mr. Sarpei an opportunity to allay the IAD’s suspicion constitutes a breach of
the duty of fairness.
[11]
The
failure to communicate to Ms. Laryea that the testimony of Mr. Sarpei would be
required is especially unfair in circumstances where, as here, the IAD provided
no reasons for disregarding Ms. Laryea’s apparently credible and
un-contradicted evidence on the question of why Mr. Sarpei answered as he did.
[12]
In
the decision in Mann v Canada (Minister of Citizenship and Immigration),
2005 CanLII 56894 (IRB), IAD Member Stein states that that in many cases, the
testimony of the appellant alone can suffice to persuade the panel of the bona
fides of the intentions of both the appellant and the applicant.
[13]
However,
as stated in Mann, in some circumstances – such as where there is an
obvious reason to question the motivations of the applicant because there is
persuasive evidence that the applicant is using the appellant to acquire status
in Canada – it might be advisable or even necessary to call the applicant as a
witness to alleviate such concerns. Nevertheless, the decision at paragraph 15
makes it clear that even in such circumstances, an adverse inference finding
does not necessarily follow:
However, in some cases, even
where the above problems exist, the appellant alone may be able to persuasively
explain the problem. The decision whether to call the applicant as a witness is
individual to each appeal and in the view of the panel, should be based on the
quality of the available other evidence in its entirety. As noted above, even
where one of the above circumstances exists, the testimony of the appellant
alone may suffice to discharge the evidentiary burden.
[14]
In
the present case, with respect to the issues the IAD found to be of the
greatest concern, it placed little to no weight on Ms. Laryea’s testimony. As
Mr. Etienne, Counsel for Ms. Laryea analogized during the course of the
hearing, the IAD seemed to be of the mind that “it doesn’t matter how pure the
Pope is, I have to hear it from the Lord.” I agree with the point made that
such a position disregards the relaxed rules of evidence approach accepted by
the IAD and sends a confusing message to appellants as to whether or not one
voice can really speak for two.
[15]
Therefore,
given the breach of fairness as found, the Decision must be set aside. However,
I am of the view that the redetermination can be on the basis of the existing
record, but with the opportunity for further evidence to be provided.
ORDER
THIS COURT
ORDERS that the decision under review is set aside and the
matter is referred back for redetermination on the following directions:
1.
The
redetermination be conducted on the basis of the existing evidentiary record,
but
with
liberty to both the Applicant and Respondent to supply further evidence; and
2.
With
respect to any evidence to be provided by Mr. Serpei, if he is unavailable to
testify
in person on the redetermination, his testimony is to be taken by either
teleconference
or videoconference at a time when Mr. Serpei confirms that he is
available.
There is no question to
certify.
“Douglas
R. Campbell”
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