Date: 20110526
Docket: IMM-5213-10
Citation: 2011 FC 621
Ottawa, Ontario, May 26, 2011
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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LUCKY OSAYUKI AMAYEANVBO
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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
I. The facts
[1] The applicant is a 31
year old citizen of Nigeria. His spouse is a 39
year old Canadian citizen.
[2] The applicant first
attempted to come to Canada in 2008. He applied for
a student visa, but the visa was refused. Later that year, the applicant
applied for a visitor’s visa from the Canadian embassy in Nigeria, which he obtained on
December 17, 2008. The applicant arrived in Canada on December 28, 2008.
[3] The applicant was
detained on his arrival to Canada. The officer who examined him was not satisfied that he was
a genuine visitor. The officer noted that the applicant did not know what he
would visit in Canada, that his luggage did
not correspond with the duration of his stay, and that he was traveling with
all his school diplomas. During this examination, the applicant declared that
his life was not in danger in Nigeria.
[4] The applicant made a
refugee claim three days later, on December 31, 2008. His refugee claim was
denied on November 24, 2009.
[5] The applicant was
released from detention on January 2, 2009. He met his wife about six weeks
later, on February 14, 2009, in a supermarket in Montreal. The sponsor stated that the applicant
proposed to her in March 2009, and they began making plans to marry in early
April. The applicant stated that he proposed in April of 2009. The couple
married on June 20, 2009. The applicant had been living in Ottawa, but moved in with his
sponsor in Montreal after the marriage. It
was the first marriage for both them. The sponsor has five children from
previous relationships.
[6] They filed a sponsorship
application on July 20, 2009, and were interviewed by the officer on August 20,
2010. The negative decision was rendered August 26, 2010. There is nothing on
the record to indicate whether the sponsor appealed the negative decision to
the Immigration Appeal Division [IAD], and if so, what the status of the appeal
is.
II. Decision
under review
[7] The officer identified 9
different problems with the evidence provided by the applicant and his wife
during the interviews. Because of these problems, the officer was not satisfied
that the relationship between the applicant and his sponsor was genuine.
A. Birthdays
and family celebrations
[8] The sponsor stated that
they had a birthday party for her with about 30 guests, and that only her two
older children were present. In contrast, the applicant stated that there were
approximately 20 guests at the party, and four of his spouse’s five children
were present.
[9] When asked about
Valentine’s Day, the sponsor stated that she celebrated the day with four of
her children, but the applicant stated that only two of the four children were
present.
[10] When asked about the last
time they had members of their family over for dinner, the applicant stated
that it was sometime after his spouse’s birthday, but he could not remember
exactly. The sponsor stated that it was after her sister’s death, which was
only a week before the interview with the officer.
B. Religion
[11] The sponsor did not know
the name of the church the applicant attended, although she stated that she
frequently drove him to church. She stated that the last time she drove him to
church was the previous Sunday, but the applicant said that he had gone alone
to church the previous Sunday. The sponsor stated that she never discussed
religion with her husband, other than events that took place at his church, but
the applicant said that they frequently discuss religion.
C. Cultural
differences
[12] When asked about the
last time that the couple discussed cultural differences, the applicant
explained that he could not remember. The sponsor said that they regularly
discuss cultural differences with the children, and that the last discussion
took place about two or three weeks previously.
D. Habits and
favorite activities
[13] The sponsor said that
her favorite activities were watching children’s shows and going to the movies,
while the applicant thought that her favorite activity was to spend time on the
social networking websites Facebook and MSN. The applicant stated that his
favorite activity was to read the newspaper and use the internet, while his
sponsor stated that his favorite activity was to go to the movies, participate
in church activities and play soccer.
[14] The officer expressed
surprise that the applicant and his sponsor gave different answers regarding
his health status and, more precisely, on a forthcoming surgery. The sponsor
did not seem to know the date of the surgery.
E. Sponsor’s
knowledge of the applicant’s immigration history
[15] The officer noted that
the sponsor did not know much about the applicant’s immigration history in Canada. She did not know why
he was detained when he first arrived, and she did not know basic information
about the status of his refugee claim, even though most of the procedural steps
took place during their marriage.
F. Cohabitation
[16] The applicant and his
sponsor agreed that they began cohabitating in June 2009. However, the sponsor
did not know the address of the place the applicant was staying prior to moving
in with her. She also stated that his home burned down in May 2009, but the
applicant stated that it burned down in March 2009. The sponsor explained that
prior to living together, he lived in Ottawa and she did not visit him there, as she did not
want to leave her children alone. The officer did not accept this explanation,
noting that her two oldest children were 17 and 18 years old, and could have
looked after the younger children, who are 8 and 10 years old. Alternatively,
she could have brought all four children to Ottawa with her to visit the applicant.
G. Children
and family links
[17] The officer found that
the applicant had little contact with the sponsor’s children. He did not know
the name of the school they attended, and could not remember the last gift
given to the children. The couple also gave different answers regarding the
last time they discussed having children together.
H. Meeting, marriage
and engagement
[18] The officer found the
timing of the marriage to be suspicious. The sponsor said that they met on
February 14, 2009. The applicant said they met sometime in February, 2009. They
were married about four months later, on June 20, 2009. The officer noted that
the sponsor had never been married before, despite having five children from
previous relationships. The officer questioned why someone who chose not to get
married until age 39 would accept a proposal from a man she had only known for
four months. The officer also found that the applicant’s decision to marry a
woman he had known only a few months was not consistent with the culture or
practice of Nigeria.
[19] The officer also noted
that the applicant and his sponsor did not agree on the number of people
invited to their wedding, or the cost of the wedding. The applicant stated that
about 30-40 people were invited, and the wedding cost about $5000-6000. The
sponsor stated that about 60 people were invited, and guessed the wedding cost
around $4000, or possibly more than that.
I. Immigration
history
[20] The officer noted that
the applicant was refused a student visa to Canada, on the grounds that the
officer was not satisfied the applicant would return to Nigeria at the end of his
authorized stay. The applicant subsequently obtained a visitor’s visa, but was
detained on arrival, on the grounds that he was not a genuine visitor. The
applicant made a refugee claim three days after declaring that his life was not
in danger in Nigeria. He applied for
permanent resident status only a few months after arriving in Canada. This immigration
history led the officer to question the applicant’s respect for Canada’s immigration laws.
[21] Given these
inconsistencies in the evidence given by the applicant and his sponsor, the
officer concluded that the applicant and his sponsor had not satisfied him that
the relationship was genuine.
II. The
statutory scheme
[22] Canadian citizens and
permanent residents may, subject to the Regulations, sponsor a foreign
national who is a member of the family class (s 13(1) of Immigration and
Refugee Protection Act [IRPA], SC 2001, c 27). In this case, the
applicant was a member of the spouse or common-law partner in Canada class (s 124 of the Immigration
and Refugee Protection Regulations [Regulations]).
[23] The key provision in this
case is section 4(1) of the Regulations, which states:
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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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[24] According to the
jurisprudence, section 4(1) of the Regulations must be read
conjunctively, that is the questioned relationship must be not genuine and
entered into primarily for the purpose of acquiring any status or privilege
under the Act: Donkor v Canada (Minister of Citizenship and Immigration),
2006 FC 1089 at para 12.
[Emphasis added]
III. Issues
[25] This Court finds that
the only issue raised by the applicant is whether the officer’s decision is
reasonable.
IV. The
standard of review
[26] Relying on Dunsmuir v
New
Brunswick,
2008 SCC 9 and Canada v Khosa, 2009 SCC 12, the
standard of review is reasonableness. Determining whether a relationship is
genuine or entered into for the purpose of obtaining status under the IRPA
is primarily a factual determination.
A. The
applicant’s submissions
[27] Although the applicant
raises three issues in his memorandum of fact and law, the applicant primarily
makes a general argument that the decision is unreasonable. In particular, the
applicant argues the contradictions and inconsistencies identified by the
officer are unreasonable, and that the officer ignored relevant evidence.
(1) The
negative credibility inferences are unreasonable
[28] The applicant relies on Sheik
v Canada (Minister of Citizenship
and Immigration),
[2000] FCJ No 568, where Justice Lemieux held that many of the alleged
inconsistencies in the applicant’s evidence were exaggerated, and that: “A
refugee claim should not be determined on the basis of a memory test” (para
28). The applicant argues that there were no real or significant
inconsistencies in the evidence. For example, the difference in the number of
wedding guests was not so significant as to be a true inconsistency. Similarly,
the variations in the number of guests at the sponsor’s 39th
birthday party are not significant, and neither is the fact that they do not
recall whether two or four of the children were present. These are just
ordinary memory problems. The applicant also argues that there is no real
contradiction in their answers about religion, or discussions on cultural
differences.
[29] The applicant suggests
that the officer unreasonably rejected the sponsor’s explanation that she did
not visit the applicant in Ottawa because she did not want to leave her young children in the
care of her teenagers. The applicant also argues it was unreasonable for the
officer to draw a negative credibility inference from the applicant’s failure
to know the name of the school his step-children attended, or from the
sponsor’s lack of knowledge regarding the status of the applicant’s refugee
claim.
(2) The
officer ignored evidence
[30] The applicant argues that
the officer ignored important evidence that countered the negative credibility
findings. Specifically, the officer makes no mention of the fact that the
sponsor had a miscarriage in the late summer of 2009, nor does he refer to
documentary evidence corroborating the relationship, such as the lease, the
joint bank account, the cards they sent each other, photographs of the
applicant with his step-children, photographs of the applicant supporting his
wife and her family at her mother’s funeral. The officer also failed to
consider that the sponsor’s sister passed away the week of her interview, and
the funeral was the day following the interview, which may have affected her
demeanor and her memory.
[31] Finally, the applicant
submits that the officer only referred to 45 of 269 questions, and did not
refer to any of the favorable evidence given by the applicant and his sponsor.
The applicant alleges that the officer focused unduly on the applicant’s
immigration history, and not on the question of whether the marriage was
genuine.
B. The
respondent’s submissions
(1) The
credibility findings are reasonable
[32] The respondent submits
that the applicant has a duty to establish, on a balance of probabilities that
he did not get married solely to obtain status in Canada. The applicant failed
to do so, and it is not for this Court to re-weigh the evidence.
[33] The respondent’s
position is that the officer fulfilled his duty to make clear credibility
findings, supported by examples as to why the applicant’s testimony was not
accepted: John Doe 2004 v Canada (Minister of Citizenship and Immigration), 2004 FC 360. The
respondent also relies on Justice Blanchard’s decision in Tameh v Canada (Minister
of Citizenship and Immigration), 2003 FC 1468, where he held that it is
reasonable for a decision maker to reject testimony based on several serious
and material inconsistencies.
[34] The respondent notes
that the applicant does not dispute the existence of disparities between the
testimony of the applicant and his sponsor. The respondent notes that there are
extensive contradictions relating to events that took place recently, in the
week and month before the interview, as well as contradictions that relate to
important life events, such as their plans to have children. These
inconsistencies cannot be explained solely by memory problems. The respondent
argues that memory has been an important aspect of credibility assessment: Faryna
v Chorny, [1951] BCJ No 152 at para 10; cited by Justice Phelan in Hassan
v Canada (Minister of Citizenship
and Immigration),
2010 FC 1136 at para 12.
[35] The respondent points to
case law holding that “a general finding of lack of credibility on the part of
an applicant may extend to all relevant evidence emanating from his testimony”
(Mugu v Canada (Minister of Citizenship and Immigration), 2009 FC 384 at
para 84). The respondent also notes that proof of a romantic relationship is
not sufficient to satisfy the test in section 2 of the Regulations. A
romantic relationship may not amount to a conjugal or common-law relationship: Mbollo
v Canada (Minister of Citizenship
and Immigration),
2009 FC 1267.
(2) The
officer properly considered all of the evidence
[36] The respondent submits
that the officer is presumed to have considered all the evidence presented, and
points out that the officer took extensive notes during the interview. The
respondent argues that the officer did not have a duty to address all of the
questions asked in the interview, and did not selectively address the evidence given
in the interviews. The respondent argues that there is no duty to attach all of
the questions and answers to the decision, and that even if there was, the
applicant should have requested it. The decision contained sufficient details
for the applicant to know the reasons he was refused.
[37] The respondent also
argues the officer reasonably considered the sponsor’s testimony that her
sister passed away the week before. The officer asked her if she was able to
continue the interview, and she replied that she could. There was no reviewable
error in the failure to refer to the sister’s death in the decision under
review.
[38] Finally, the respondent
also submits that it is entirely appropriate for the officer to consider the
applicant’s immigration history, relying on Rosa v Canada (Minister of Citizenship
and Immigration), 2007 FC 117, and McBean v Canada (Minister of Citizenship
and Immigration), 2009 FC 1149, among others.
V. Analysis
- Was the officer’s
decision reasonable?
[39] This case turns on credibility.
The Court agrees with the applicant that several of the alleged inconsistencies
seem insignificant. For example, it is not inconsistent that the applicant said
they met in February 2009, and the sponsor specified that it was on February 14th,
2009. The fact that the applicant and his sponsor had differing responses on
the number of guests and which of the sponsor’s children were present at her 39th
birthday party also seems insignificant. The applicant submitted pictures from
this party. On pages 28 and 29 of the Application Record, there are two
pictures from the birthday party. From the pictures, it is clear that there
were a number of guests, and that the applicant and the sponsor were both
there. In light of the pictures showing that the party did take place, it is
difficult to see how their failure to remember the exact number of guests
undermines the genuineness of their relationship, unless the officer believes
the pictures were faked.
[40] Other answers that the
officer finds to be contradictory could be reconciled. For example, when asked
about religion, the sponsor states that they do not speak about religion but
that the applicant “tells me about stuff that happen in church” (Certified
Tribunal Record, p. 14). The applicant simply states that “I speak about
religion”. It could be that when the applicant tells his wife about things that
happened in church, he interprets this as “speaking about religion”, but she
does not.
[41] Was there sufficient
evidence before the officer to support a negative credibility finding? The
officer is entitled to consider the applicant’s immigration history, and also
the fact that the sponsor did not know much about some aspects of the
applicant’s life. She did not know what kind of church he attended. She knew
very little about his immigration status. She did not know his upcoming surgery
date. They differed on when they last discussed having children.
[42] The applicant has also
not established that the officer ignored significant evidence. It is not a reviewable
error for the officer to only refer to 45 questions from the interview. The
officer was simply pointing out what he considered the key inconsistencies that
concerned him, and is not required to refer to all or even most of the
questions and answers.
[43] The applicant’s
strongest argument though, is that the officer ignored the positive evidence of
a genuine relationship. In particular, the officer did not refer to the photos
and documentation, as well as the interview answers which did indicate that
they were in a genuine relationship.
[44] The officer has provided
reasons outlining his concerns with the evidence presented by the applicant,
and given the few inconsistencies identified; the negative decision was not, in
the Court’s view, reasonably open to the officer on these facts. Another
officer might have come to another conclusion, the Court finds, that in this
case, the conclusion reached by the officer was not reasonably open, based on
the minor inconsistencies found.
[45] The application is
allowed. The officer has not provided sufficient support for his negative
credibility findings. This is a case where the officer has ignored significant
evidence of a positive, genuine relationship by unduly focusing on minor
inconsistencies.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. The
application for leave is allowed.
2. There
is no question of general interest to certify.
"André
F.J. Scott"
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