Date:
20130228
Docket:
IMM-7457-12
Citation:
2013 FC 209
Montreal, Quebec,
February 28, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
|
|
MATTHEW L.L. ENRIGHT
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant, Mr. Matthew L.L. Enright, a Canadian citizen, sponsored the
application of Ms. Natalia Kuryashkina, a citizen of Russia, for permanent
residence as a member of the family class under subsection 12(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicant
seeks judicial review of the Immigration Appeal Division [IAD] of the
Immigration and Refugee Board’s decision that their common-law partnership or
conjugal partnership was not genuine and was entered into primarily for the
purpose of acquiring a status or privilege under the IRPA.
II. Judicial
Procedure
[2]
This
is an application under subsection 72(1) of the IRPA for judicial review
of the decision of the IAD, dated June 21, 2012.
III. Background
[3]
The
Applicant was born in 1953 and Ms. Kuryashkina in 1957.
[4]
In
1998, Ms. Kuryashkina first attempted to enter Canada at the invitation of a
man she met through a personal advertisement but her application for a
visitor’s visa was refused.
[5]
On
February 20, 2000, Ms. Kuryashkina entered Canada without a visitor’s visa and
applied for refugee protection; this application was dismissed in August 2000.
[6]
In
December 2000, Ms. Kuryashkina married a Russian national who sponsored an
application for Ms. Kuryashkina for permanent residence. In May 2002, this
application was withdrawn and Ms. Kuryashkina divorced her husband in February
2003 because of his abusive treatment.
[7]
In
2002, Ms. Kuryashkina applied for an exemption on humanitarian and
compassionate [H&C] grounds and a Pre-Removal Risk Assessment [PRRA].
[8]
Ms.
Kuryashkina’s H&C and PRRA applications were denied on June 17, 2003.
[9]
A
warrant for Ms. Kuryashkina’s arrest was issued on July 23, 2003 and, when she
did not present herself at her scheduled October 30, 2003 removal, another arrest
warrant was issued.
[10]
On
August 17, 2004, Ms. Kuryashkina met the Applicant and they began dating in
September 2004.
[11]
The
Applicant and Ms. Kuryashkina claim they cohabited at his address since
September 2004.
[12]
On
February 3, 2005, Ms. Kuryashkina went to the office of Ms. Venturelli (her
former lawyer) to retrieve her legal file, leaving her telephone number with Ms.
Venturelli’s assistant.
[13]
On
February 9, 2005, Ms. Kuryashkina was arrested at an address that was not the
Applicant’s. A false name was on the mailbox although the September 1, 2004
lease was in her name.
[14]
From
February 2005 to September 2005, Ms. Kuryashkina stayed in a motel room in
Plattsburgh, New York at the expense of the Applicant, who visited her frequently.
[15]
On
March 15, 2005, Ms. Kuryashkina complained to the Barreau du Québec that (i) Ms. Venturelli
and her assistant advised her to conceal her new address from Citizenship and
Immigration Canada [CIC] and to use a false name on her mailbox to avoid
removal; (ii) another lawyer advised her to remain in Canada notwithstanding
her removal order and that he could obtain a ministerial consent to stay; (iii)
Ms. Venturelli’s assistant contacted CIC to notify them of her whereabouts in
February 2005 and was responsible for her arrest on February 9, 2005; and, (iv) Ms. Venturelli’s
assistant refused to remit Ms. Kuryashkina’s legal file to Ms. Kuryashkina further
to her request in February 2005 [Complaint].
[16]
In
September 2005, Ms. Kuryashkina returned to Canada upon receiving a new
passport.
[17]
On
June 9, 2006, Ms. Kuryashkina’s application for permanent residence sponsored
by the Applicant was denied as she had entered Canada without authorization.
[18]
Pursuant
to a removal order issued against her on June 28, 2006 and confirmed on
August 28, 2006, Ms. Kuryashkina was removed from Canada on August 28,
2006.
[19]
On
November 9, 2006, Ms. Kuryashkina submitted another application for permanent
residence sponsored by the Applicant [PR Application].
[20]
In
2009, a syndic of the Barreau du Québec considered the Complaint not credible.
[21]
On
January 19, 2011, the IAD refused the PR Application, finding that the
relationship between Ms. Kuryashkina and the Applicant was not genuine and had
been entered into primarily for the purpose of acquiring permanent residence
status in Canada.
[22]
On
November 3, 2011, this Court granted judicial review of the IAD’s decision.
[23]
On
August 2, 2011, the Review Committee of the Barreau du Québec confirmed that there
was no reason to lodge the Complaint with the Disciplinary Council.
[24]
On
December 14, 2011, the Applicant gave Ms. Kuryashkina $15,000 CDN to purchase a
home in Russia. The Applicant has produced evidence of other funds transfers to
Ms. Kuryashkina.
[25]
On
May 17, 2012, Ms. Venturelli and her assistant denied Ms. Kuryashkina’s
allegations before the IAD.
[26]
On
June 21, 2012, the IAD again denied the PR Application.
IV. Decision
under Review
[27]
Pursuant
to section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227
[Regulations], the IAD determined that Ms. Kuryashkina could not be
considered the Applicant’s common-law or conjugal partner under the Regulations
and the IRPA because their common-law or conjugal partnership was
entered into primarily for the purpose of acquiring a status or privilege under
the IRPA and was not genuine.
[28]
On
Ms. Kuryashkina’s general credibility, the IAD drew adverse inferences from
her failure to disclose her address to CIC, disinclination to voluntarily
report herself, illegal employment in Canada, and inconsistent testimony on the
return of her legal files.
[29]
The
IAD did not believe Ms. Kuryashkina’s allegation that she received bad legal
advice to violate her removal order. The IAD reasoned that Ms. Kuryashkina
filed grievances against most of the six lawyers who represented her, her
allegations were unsupported, and her Complaint had been dismissed by the Barreau du Québec.
[30]
The
IAD doubted the credibility of the Applicant and Ms. Kuryashkina on the
genuineness of their common-law or conjugal partnership, given: (i) their
inconsistent testimony on their dating, sexual, and cohabitation history, her
employment since returning to Russia, and his fear of flying; (ii) her failure
to tell him that she was without status until at least two months after they
allegedly began cohabiting; (iii) the lease on her own apartment; (iii) her
failure to list that apartment on her PR Application; (iv) her use of a false
name on her mailbox; and, (v) her claim at her arrest that her boyfriend was
named Robert Price (the Applicant’s alias as a private investigator).
[31]
The
IAD also did not find credible the Applicant’s allegations that he was unaware Ms. Kuryashkina required authorization to re-enter Canada in September 2005. The IAD reasoned
that, since the Applicant was eager to seek legal advice on Ms. Kuryashkina’s other immigration problems, it was unlikely that he would fail to obtain legal
advice on this issue. The IAD also noted that the condition of authorized re-entry
was expressed on Ms. Kuryashkina’s removal orders.
[32]
According
to the IAD, the relationship between the Applicant and Ms. Kuryashkina did not
qualify as a common-law partnership. The Applicant and Ms. Kuryashkina could
not establish that they had lived together for at least one year by August 30,
2006, the date at which the Applicant applied for sponsorship of Ms. Kuryashkina’s application for permanent residence.
[33]
The
IAD also found that the Applicant and Ms. Kuryashkina could not establish, on a
balance of probabilities, that they were conjugal partners. Applying the
factors stated by the Supreme Court of Canada in M. v H., [1999] 2 SCR
3, it was observed that the Applicant and Ms. Kuryashkina cohabited for a
time, behaved as a couple, communicated frequently on an ongoing basis, and the
Applicant supported Ms. Kuryashkina financially on her return to Russia.
[34]
Noting
that only the Applicant contributed financially, the IAD nonetheless found that
the relationship was one-sided. While it considered his intentions genuine, it
found that the latter entered, and remained in, the relationship for the
primary purpose of acquiring permanent residence. The IAD was also persuaded by
their failure to visit each other in the six years since Ms. Kuryashkina returned to Russia, their failure to discuss alternatives should this
Application fail, and Ms. Kuryashkina’s history of evading removal orders and
various credibility issues.
V. Issues
[35]
(1)
Was the IAD reasonable in concluding that the common-law or conjugal
partnership between the Applicant and Ms. Kuryashkina was entered into
primarily for the purpose of acquiring a privilege or a status under the IRPA?
(2) Were the
IAD’s credibility findings reasonable?
VI. Relevant Legislative
Provisions
[36]
The
following legislative provisions of the Regulations are relevant:
|
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
(a) was entered into
primarily for the purpose of acquiring any status or privilege under the Act;
or
(b) is not genuine.
|
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 :
a) visait principalement
l’acquisition d’un statut ou d’un privilège sous le régime de la Loi;
b) n’est pas authentique.
|
VII. Position of the Parties
[37]
The
Applicant claims the decision is based on erroneous findings of fact made in a
perverse or capricious manner or without regard for the material before it.
According to the Applicant, the IAD unreasonably failed to consider the
explanations that he and Ms. Kuryashkina offered in response to the IAD’s
concerns in drawing its findings of fact.
[38]
The
Applicant also takes the view that it was unreasonable to conclude that he and Ms. Kuryashkina did not have a common-law or conjugal partnership or, on the basis of her
immigration history, that she entered the partnership primarily for the purpose
of acquiring a status or privilege under the IRPA.
[39]
The
Respondent counters that the IAD was reasonable in finding that the Applicant
and Ms. Kuryashkina did not have a genuine common-law or conjugal
partnership and that Ms. Kuryashkina entered the partnership primarily for
the purpose of acquiring a status under the IRPA. The Respondent argues
that the IAD could rely on inconsistencies and implausibilities arising from
the record to find the Applicant and Ms. Kuryashkina not credible and that Ms. Kuryashkina’s immigration history demonstrate that her common-law or conjugal
partnership was not genuine and was entered into for the primary purpose of
acquiring permanent resident status.
[40]
The
Respondent also argues that the Applicant and Ms. Kuryashkina did not present
sufficient probative evidence that they share a common-law or conjugal
relationship. The Respondent observes that the Applicant and Ms. Kuryashkina
were not common-law partners because they could not show that they had
cohabited for at least one year. On whether they shared a conjugal partnership,
the Respondent takes the view that proof of a romantic relationship alone does
not satisfy the definition of conjugal partnership in section 2 of the Regulations.
It was reasonable, according to the Respondent, to conclude that the Applicant
and Ms. Kuryashkina did not share a conjugal relationship.
VIII. Analysis
Standard of
Review
[41]
The
standard of reasonableness applies to the IAD’s findings on credibility and
that a relationship is in bad faith under section 4 of the Regulations (Wiesehahan
v Canada (Minister of Citizenship & Immigration), 2011 FC 656; Kitomi
v Canada (Minister of Citizenship and Immigration), 2012 FC 1293).
[42]
On
a standard of reasonableness, the Court may only intervene if the IAD’s reasons
are not “justified, transparent or intelligible”. To meet this standard,
decisions must fall in the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 47).
(1) Was the IAD
reasonable in concluding that the common-law or conjugal partnership between the
Applicant and Ms. Kuryashkina was entered into primarily for the purpose of
acquiring a privilege or a status under the IRPA?
[43]
The
critical question in this Application is whether the IAD could reasonably
conclude that the common-law or conjugal partnership of the Applicant and Ms. Kuryashkina was entered into primarily for the purpose of acquiring a privilege or
status under the IRPA.
[44]
Ms. Kuryashkina’s immigration history could support an inference that she entered a
common-law or conjugal partnership with the Applicant for the primary purpose
of acquiring permanent residence. Since 2000, Ms. Kuryashkina made the
following attempts to gain legal status in Canada: an application for refugee
protection, an application for permanent residence sponsored by her ex-husband,
an H&C application, a PRRA application, and two applications for permanent
residence sponsored by the Applicant. Ms. Kuryashkina also sought to remain
illegally in Canada by disobeying a removal order, by withholding her address
from CIC, and by affixing a false name to her mailbox.
[45]
An
applicant’s immigration history may be relevant in deciding if a marriage or
partnership is in good faith (Singh v Canada (Minister of Citizenship and
Immigration), 2012 FC 23, 403 FTR 271 at para 15). Such evidence, however,
is not dispositive in the face of countervailing evidence. In Elahi v Canada
(Minister of Citizenship and Immigration), 2011 FC 858, 394 FTR 90, Justice
Richard Mosley held that the IAD could not infer a bad faith marriage from an
applicant’s attempts to establish himself in Canada alone in the face of
evidence establishing a genuine relationship (at para 18-19).
[46]
One
may reasonably conclude that an applicant who persistently seeks to remain in Canada by legal and illegal means had entered a relationship to acquire a privilege or
status under the IRPA. Since, however, this conclusion may not follow in
all circumstances, an applicant’s immigration history cannot be determinative
and the IAD is required to consider evidence contradicting this conclusion.
[47]
Given
the IAD’s negative credibility findings discussed below, the Applicant and Ms. Kuryashkina did not present evidence contradicting the conclusion that Ms. Kuryashkina had entered their common-law or conjugal partnership primarily to acquire
permanent residence.
[48]
While
a relationship of financial support between the Applicant and Ms. Kuryashkina existed, it does not refute the IAD’s conclusion as to Ms. Kuryashkina’s
primary purpose in entering their partnership. Since the flow of support was
one-sided, it establishes only the primary purposes of the Applicant, not Ms. Kuryashkina. In Dalumay v Canada (Minister of Citizenship and Immigration), 2012
FC 1179, Justice Jocelyne Gagné held that evidence of one-sided financial
support by a wife did not rebut the finding that her husband entered a marriage
with the primary purpose of acquiring status under the IRPA (at para
32).
[49]
Neither
Ms. Kuryashkina’s divorce from her husband or her alleged refusal of an offer
of sponsorship from another suitor contradicts the IAD’s finding on her primary
purpose. Although the IAD did not specifically address these aspects of Ms.
Kuryashkina’s immigration history, Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708
permits this Court to “look to the record for the purpose of assessing the
reasonableness of the outcome” (at para 15).
[50]
Ms. Kuryashkina’s divorce from her ex-husband and the consequent failure of her application
for permanent residence does suggest that she would not suffer an abusive
husband to acquire permanent residence status. Since Ms. Kuryashkina made
H&C and PRRA applications around the time that she left her ex-husband, her
divorce does not necessarily disrupt the general pattern of her immigration
history. Consequently, it does not contradict the IAD’s conclusion that she was
determined to acquire status under the IRPA. As for the refused offer of
sponsorship, this allegation is unsupported by evidence other than Ms. Kuryashkina’s own statements. Since the IAD found Ms. Kuryashkina not credible, it
would fall within the range of acceptable, possible outcomes to give this
allegation little weight.
[51]
The
test for section 4 of the Regulations is disjunctive rather than
conjunctive. A finding that a marriage or partnership was entered into for the
primary purpose of acquiring a status under the IRPA is sufficient to
engage the provision (Keo v Canada (Minister of Citizenship and Immigration),
2011 FC 1456, 401 FTR 278 at para 13).
[52]
Given
the credibility issues discussed below and the lack of countervailing evidence,
one could infer from Ms. Kuryashkina’s immigration history that, more likely
than not, she entered the partnership with the primary purpose of acquiring
permanent residence. Since the finding on Ms. Kuryashkina’s primary
purpose is in the range of acceptable, possible outcomes, it is unnecessary to
consider if the partnership was genuine.
(2) Were the
IAD’s credibility findings reasonable?
[53]
When
read in their entirety (in the May 17, 2012 decision) the IAD’s credibility
findings on Ms. Kuryashkina are reasonable. As Justice John O’Keefe stated in Kambanda
v Canada (Minister of Citizenship and Immigration), 2012 FC 1267,
decision-makers may consider inconsistencies in evaluating credibility if they
are “rationally related to [an] applicant's credibility” and “major enough by
themselves to call into question the applicant's credibility”. A reasonable
credibility finding, however, may not depend on “a microscopic examination of
peripheral issues” (at para 42).
[54]
Inconsistencies
on central issues that are rationally related to Ms. Kuryashkina’s credibility
are sufficiently major to question her credibility arise from the record. There
was, for example, evidence that the Applicant and Ms. Kuryashkina began to cohabit
in September 2004 (Certified Tribunal Record [CTR] at p 643) or November 2004
(CTR at p 582) but also evidence that Ms. Kuryashkina continued to inhabit
“from time to time” an apartment leased in her own name (which address she did
not disclose on her PR Application) (CTR at p 532). Ms. Kuryashkina also gave
inconsistent testimony on whether she retrieved a partial copy of her legal
files from Ms. Venturelli’s assistant or no copy at all (CTR at pp 340 and
529). The inconsistent testimonies of Ms. Venturelli and her assistant, on one
hand, and Ms. Kuryashkina, on the other, are also rationally connected to Ms. Kuryashkina’s credibility and are sufficiently major. In light of the refusal of the
Complaint by the Barreau du Québec and the other credibility issues surrounding
Ms. Kuryashkina’s evidence, it was reasonable to prefer the evidence of
the former.
[55]
The
IAD’s credibility findings are also reasonable given Ms. Kuryashkina’s
inconsistent testimony on whether the Applicant ever flew in a plane. The Applicant’s
fear of flying prevented them from meeting and was central in establishing if
the partnership was genuine. It was not a peripheral issue. Confronted with her
earlier testimony that the Applicant had “[n]ever taken a plane in his life”, Ms.
Kuryashkina chose to deny her recorded remarks: “Well I didn’t say that before
he never flew. After we met he never took a plane. I never said that” (CTR at pp
348 and 388). What is of concern is not the inconsistency with the Applicant’s
claim that he had a fear of flying but had flown in the past; the concern lies,
rather, in Ms. Kuryashkina’s disavowal of her earlier remarks. Given her choice
to contradict herself so self-evidently, this inconsistency belies her
credibility and is sufficiently major under Kambanda, above.
IX. Conclusion
[56]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS
COURT ORDERS that the Applicant’s application for
judicial review is dismissed. No question of general importance for
certification.
“Michel M.J. Shore”
Email this Content