Docket:
IMM-10061-12
Citation: 2013 FC 1203
Ottawa, Ontario, November
29, 2013
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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ANGELA MARIE GRANATA
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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]
Ms Granata, a Canadian citizen, married Mr
Mobolaji Debayo-Doherty (Mr Doherty), a citizen of Nigeria, on February 25,
2008. She subsequently applied to sponsor Mr Doherty for immigration to Canada. The application was refused by a visa officer and that decision was appealed. Ms
Granata now seeks judicial review, pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], of the
September 6, 2012 decision of the Immigration Appeal Division [IAD] of the
Immigration and Refugee Board, which dismissed her appeal and found that her
marriage to Mr Doherty was not genuine and was entered into primarily for the
purpose of acquiring status under the Act.
[2]
For the reasons that follow, the application is
dismissed.
Background
[3]
Mr Doherty is a citizen of Nigeria, where he currently resides. In November 2003, he entered Canada from the US, claiming refugee protection. In November 2004, his refugee claim was refused, and leave to appeal
was denied. In May 2006, his motion for a stay of deportation was dismissed by
this Court. A warrant was issued for his removal in August 2006, which was
executed on March 10, 2009. On March 12, 2009, Mr Doherty was deported from Canada to the US and detained by US authorities until May 2009, then deported to Nigeria.
[4]
Mr Doherty was previously married to another
Canadian citizen in April 2006. They separated five months later and divorced
in October 2007. He has a son from this marriage who resides in Canada. His ex-wife applied to sponsor him for permanent residence on April 17, 2006, but
withdrew her sponsorship on June 11, 2007.
[5]
The current application for sponsorship by Ms
Granata was submitted in October 2009, after Mr Doherty’s deportation. Mr Doherty
was interviewed at the visa post in Accra on August 5, 2010. As a preliminary
finding, the visa officer was satisfied that the marriage was genuine. However,
before the visa application was finalized, the visa post received a letter from
Ms Granata, sent on July 30, 2010, which withdrew her sponsorship. Two weeks
later she sent a letter to rescind the withdrawal of sponsorship.
[6]
Mr Doherty was interviewed at the visa post in Accra again on November 15, 2010. The visa officer found that there was a breakdown of
marital relationship which led to Ms Granata’s withdrawal of her sponsorship,
notwithstanding that the withdrawal had been rescinded. The visa officer was
not satisfied that the marriage was genuine or that it was not entered into
primarily for the purpose of immigration. The spousal sponsorship application
was refused by letter dated November 15, 2010. This decision was appealed to
the IAD.
The IAD Decision
[7]
The IAD noted that to succeed on the appeal, Ms
Granata must prove that the marriage was not entered into primarily for the
purpose of her husband, Mr Doherty, gaining any status or privilege under the Act
and that it is genuine.
[8]
However, to dismiss the appeal, the IAD must
find either that the marriage was entered into primarily for the purpose of
acquiring status or privilege under the Act or that it is not
genuine.
[9]
The IAD noted the objectives of immigration, including
to reunite families in Canada, but found that Ms Granata had failed to prove,
on a balance of probabilities, both that the marriage was genuine and
that it was not entered into primarily for the purpose of acquiring a status or
privilege under the Act. In coming to this conclusion, the IAD noted
that it considered the evidence and submissions, including the documentary and
photographic evidence, the telephone invoices, the length of time since the
marriage, and the testimony given at the hearing. The IAD drew an adverse
inference from the fact that Mr Doherty did not testify at the hearing. The IAD
also found Ms Granata to be not credible, because her evidence was vague,
evasive, self-contradictory, contradictory to information previously provided,
and in some aspects defied logic and common sense. The IAD found that Ms
Granata’s lack of credibility rebutted the presumption that the evidence
submitted was truthful.
[10]
The IAD acknowledged that generally, the
testimony of an applicant alone would be sufficient to address the bona
fides of a couple’s intentions and that negative inferences would not be
drawn from the failure of the other party to testify. However, the IAD
canvassed the jurisprudence and the relevant evidentiary principles and drew a
negative inference from Mr Doherty’s failure to testify.
[11]
The IAD referred to John Sopinka, Sidney
Lederman & Alan Bryant, The Law of Evidence in Canada, 2d ed
(Toronto: Butterworths, 1999) and jurisprudence referring to Professor
Wigmore’s treatise on evidence, notably Ma v Canada (Minister of Citizenship
and Immigration), 2010 FC 509, 368 FTR 116, which noted the relevant
factors in determining whether it would be reasonable to expect a person to
testify and which would support an adverse inference where that person does not
testify.
[12]
The IAD noted that much of the case rested on
the credibility of Ms Granata and Mr Doherty and that there had been no
opportunity to question Mr Doherty about the inconsistencies in their accounts.
The IAD also found, on a balance of probabilities, that Mr Doherty was aware of
the hearing and chose not to testify by long distance telephone conference.
[13]
The Board noted at para 25:
As stated earlier,
the appellant’s evidence was found to be not credible, trustworthy or reliable
and therefore not presumed to be true. In such circumstances, the appellant’s
failure to call the applicant as a witness contradicts both logic and common
sense and, as such, is further reason for not presuming the appellant’s
evidence given under oath as to the genuineness of her marriage to be true. An
adverse inference is thus drawn from the applicant’s failure to testify at this
hearing.
[14]
The Board found that Ms Granata’s explanation
for Mr Doherty’s failure to testify – that telephone service was spotty and
that he was at work, but that he could have called from home on a land line if
they had known he should testify – was unconvincing.
[15]
With respect to the genuineness of the marriage,
the IAD acknowledged that there are many factors to consider in determining
whether a marriage is genuine (Khera v Canada (Minister of Citizenship and Immigration),
2007 FC 632, [2007] FCJ No 886). The Board considered several factors
individually and then weighed the factors cumulatively and found that, on a
balance of probabilities, the marriage is not genuine.
[16]
The IAD considered the length and timing of Mr
Doherty’s first marriage, and concluded that, on a balance of probabilities,
his first marriage was not genuine and was entered into primarily for the
purposes of obtaining status.
[17]
The IAD also noted the inconsistency in their
respective accounts of when they first met. Ms Granata stated that she met Mr
Doherty in February 2006. Mr Doherty stated in his application that he was
first introduced to Ms Granata on February 21, 2006. However, during his
interview at the visa post he indicated that they met sometime towards the end
of 2006. The IAD found his explanation for the discrepancy, including that he
was mistaken about the dates, to be unsatisfactory. Moreover, Mr Doherty
indicated that they started dating shortly after they met. However, the Board
noted that Mr Doherty married his first wife in April 2006 and it would be
illogical that he met and started dating Ms Granata in February 2006, shortly
before his marriage to his first wife.
[18]
The IAD noted that no photographs of the couple
were submitted to substantiate their dating and cohabitation although there
were photographs of the marriage ceremony with some people in the background.
[19]
The IAD accepted that the couple has a son
together, born a few months after their marriage, but noted that no photographs
of Mr Doherty with their son, Nathan, were submitted, even though Mr Doherty
was not deported until nine months after Nathan’s birth. The IAD concluded that
there was insufficient evidence of an existing relationship between Mr Doherty
and his son.
[20]
With respect to Ms Granata’s withdrawal of
sponsorship, the IAD found that, on a balance of probabilities, there was
another reason for her actions. The IAD found that her explanation – that she
withdrew her sponsorship because she learned that her husband was having an
affair – to be unsatisfactory and not credible. In addition, during his
interview at the visa post on November 15, 2010, Mr Doherty was not at all
aware of the fact that Ms Granata had withdrawn her sponsorship on July 30,
2010. When confronted with the information that the sponsorship had been
withdrawn and asked if there was any reason she would do so, Mr Doherty
suggested that Ms Granata needed money and had asked his sister in the UK for funds, but he did not otherwise know why she would withdraw her sponsorship.
However, at the IAD hearing, Ms Granata clearly stated that she had told her
husband what she had done shortly after sending the letter in late July and
August, and this was confirmed on cross examination. She also gave a differing
account of the request for money; she stated that she asked her sister-in-law
for money in October 2010, after she had rescinded her withdrawal.
[21]
The IAD also considered the evidence of the
couple’s communication with each other. Based on the brevity of their phone
calls, the superficial content of their letters, and the fact that Mr Doherty
did not know about Ms Granata’s withdrawal of the sponsorship application,
despite her evidence that she told him everything, the IAD concluded that the
evidence of ongoing communication was weak and insubstantial.
[22]
The IAD accepted Ms Granata’s evidence that
neither financially supports the other, but that they had equally shared
lottery winnings and Ms Granata had sent Mr Doherty two payments of $5,000 and
$15,000 for his share.
[23]
The IAD also noted that although Ms Granata
testified that she visited her husband while he was incarcerated in the US, after his deportation from Canada, there was no documentary evidence to substantiate these
visits.
[24]
After finding the marriage to not be genuine,
and due to the credibility findings, the negative inference drawn from Mr
Doherty’s failure to testify, the lack of credible explanations for the
inconsistencies, and Mr Doherty’s desire to enter and remain in Canada, given
his immigration history, the IAD found that Ms Granata had not discharged the
burden upon her and also concluded that the evidence demonstrated that the
primary purpose of the marriage was to acquire status under the Act.
Issues
[25]
Ms Granata, the applicant, submits that the
decision is not reasonable because the IAD erred by: misapprehending the facts
or failing to take relevant evidence into consideration; relying on improper
principles; and, making unreasonable credibility findings.
Standard of review
[26]
The genuineness of a marriage is a question of
fact reviewable on the reasonableness standard (Singh v Canada (Minister of Citizenship and Immigration), 2012 FC 23 at paras 16-17, 403 FTR 271).
[27]
The role of the court on
judicial review where the standard of reasonableness applies is to determine
whether the Board’s decision “falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190). “There might be more than one
reasonable outcome. However, as long as the process and the outcome fit
comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.” (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] 1SCR 339).
[28]
With respect to credibility, the IAD's
credibility findings are findings of fact and are to be afforded significant
deference by the reviewing Court. The IAD had the opportunity to hear and
observe Ms Granata give her evidence in an oral hearing and is in the best
position to assess her credibility. In Sanichara v Canada (Minister of Citizenship and Immigration), 2005 FC 1015 at para 20, 276 FTR 190, Justice
Beaudry stated:
[20] The IAD,
in a hearing de novo, 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 IAD to determine. As long as the
conclusions and inferences drawn by the IAD 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 to the credibility findings.
The IAD decision is reasonable
[29]
The role of the Court is not to make a new decision but
to determine if the IAD’s decision was reasonable. In this case, the decision
reached by the IAD, which is supported by the reasons and the record, is within
the range of acceptable outcomes and is defensible. As noted below, the IAD commented
on the lack of some documents that may have in fact been submitted; however, on
their own or cumulatively, these misstatements were not significant or
determinative of the decision.
Credibility
[30]
The IAD’s negative credibility findings were well-founded.
For example, Ms Granata and Mr Doherty had differing accounts of when they met
and when their relationship began. The Board reasonably found these accounts to
be inconsistent despite Ms Doherty’s submissions to the Court that Mr Doherty
clarified the dates in his interview and referred to his mistaken memory. The
Board reasonably found the explanations not logical given that Mr Doherty
married his first wife in April 2006, apparently after he met Ms Granata and,
while that marriage was short-lived, there is some overlap in the dates.
[31]
The IAD also had serious concerns about Ms
Granata’s explanation of why she withdrew and then hastily reinstated her
sponsorship application. In addition to discrepancies in their testimony, the
IAD reasonably drew a negative inference from the fact that Mr Doherty did not
testify at the hearing or otherwise attempt to clarify their conflicting
evidence.
[32]
Ms Granata submits that the adverse inference is
improper because only she could explain what she had told her husband about her
withdrawal of sponsorship and because Mr Doherty was not aware, he could not
have addressed this area of inconsistency. I do not agree. There were several
inconsistencies in their accounts that could have been clarified if Mr Doherty
had testified at the hearing. The determinative issue for the IAD was the
withdrawal of sponsorship, the attempt to rescind the withdrawal, and the
inconsistent accounts of when Ms Granata told Mr Doherty about this. Ms Granata
now suggests that she may have only told Mr Doherty that she withdrew her
sponsorship after his visa was refused in November 2010. A similar suggestion
was made to the IAD at the hearing in her re-examination and the IAD noted that
this was inconsistent with her testimony earlier in that hearing, which had
also been confirmed on cross-examination. The IAD clearly did not accept this
testimony. The participation of Mr Doherty at the hearing could have clarified
when Ms Granata told him that she had withdrawn her sponsorship.
[33]
Given the negative credibility findings and the
lack of documentary evidence provided by Ms Granata, it was reasonable for the
IAD to conclude that, on a balance of probabilities, she did not visit her
husband in the US while he was in detention. Ms Granata submits that there was
such evidence on the record because both she and Mr Doherty said this occurred
during their interviews. The IAD’s finding, however, is not unreasonable
because there was no supporting evidence on the record before the IAD and the
IAD had found Ms Granata to be not credible. Ms Granata’s submission that no
records are maintained of such visits or that records are not available is not
an adequate response. There would be many other ways to demonstrate regular
visits to the US, including gas, food, transportation or accommodation
receipts. The lack of documentary evidence suggests that no efforts were made
to provide any records to substantiate the cross border visits.
[34]
Similarly, although Ms Granata submits that she
and Mr Doherty did cohabit before and after their marriage, it was not
unreasonable for the Board to find that there was no evidence to substantiate
their cohabitation. The sponsorship application form lists a common address and
the testimony of Mr Doherty at his first interview indicated that he lived with
her at that address. Evidence to support cohabitation could take many forms,
yet none was provided. The Board’s finding was just that – there was no
documentary evidence.
Communication and Relationship with their son
[35]
Ms Granata submits that there was ample evidence
to demonstrate that she and Mr Doherty had a genuine relationship, together
with their son. The IAD, however, concluded that the evidence of ongoing
communication was weak and insubstantial. The IAD analyzed the cards and letters
sent by Mr Doherty to Ms Granata and their son but found their content to be
superficial. Such a finding was open to the IAD, given its experience in
evaluating this type of correspondence. The IAD also noted the brevity, albeit
regularity, of Ms Granata’s telephone calls with her husband, most of which
lasted under a minute. Furthermore, in response to Ms Granata’s claim that she
and her husband were very open with one another, the IAD reasonably placed
significant weight on the fact that she had not told her husband about the
actions she took to withdraw her sponsorship and then to rescind that
withdrawal. Although Ms Granata indicated that she had told Mr Doherty about
the withdrawal and rescission, she could not explain why he had no awareness of
this when interviewed in November. The IAD reasonably concluded that Ms Granata
and her husband, Mr Doherty, do not have meaningful ongoing communication with
each other.
[36]
The IAD also reasonably concluded that, on a
balance of probabilities, Mr Doherty did not have a solid relationship with his
son, Nathan. The IAD considered written correspondence in which he wrote fondly
of the child but also noted the lack of any photographs with Nathan. The IAD
gave more probative weight to the latter. While photographs are not
determinative as they can be created to depict relationships that may or may
not be genuine, it is not the role of the Court to re-weigh the evidence
considered by the IAD.
The First Marriage
[37]
I agree that the IAD’s finding that Mr Doherty’s
first marriage to another Canadian citizen, who also sought to sponsor him and
then withdrew sponsorship upon the breakdown of the marriage after five months,
was not genuine, is not directly relevant to the IAD’s determination whether
the marriage to Ms Granata is genuine. The reference to Mr Doherty’s first
marriage was part of the overall background that the IAD was entitled to
consider. As Ms Granata submits, marriages break down for various reasons and
this first marriage was short-lived. However, the finding regarding the first
marriage was not the determinative factor in the IAD’s decision; the IAD
considered many factors in reasonably concluding that Ms Granata had not
established that the current marriage was genuine.
Marriage Certificate
[38]
Similarly, the IAD’s reference that no marriage
certificate was submitted merely reflects the confusion regarding whether the
document was part of the package before the IAD. The record does indicate that
an original certificate was provided to the visa post in Accra. Whether or not
the certificate was provided to the IAD is not determinative. The IAD did not
doubt that Ms Granata and Mr Doherty were legally married; the issue was the
genuineness of the marriage.
The Withdrawal of Sponsorship
[39]
The applicant’s withdrawal of sponsorship and
subsequent rescission of the withdrawal was considered carefully by the IAD. It
placed significant weight on this and on Ms Granata’s inconsistent evidence
about her reasons for doing so and when she had told Mr Doherty.
[40]
Ms Granata was repeatedly questioned at the IAD
hearing about her actions and was given a full opportunity to explain her
motivations, the source of the information that Mr Doherty was having an
affair, and the timing of the letters, yet she was not able to provide a compelling,
let alone, satisfactory explanation.
[41]
For example, when questioned by the respondent’s
counsel during the hearing, to clarify the testimony she had previously given
on this issue, Ms Granata had little to say:
Q. …So,
he had his first interview [on August 5, 2010], everything was good. Then, they
received the letters and that caused a few concerns. So, he was re-interviewed
in November 2010, as per the record page[s] [25, 26]. So, he was re-interviewed
in November 2010 just to look at the concerns. And when you look at the notes
that were taken by the Visa officer, your husband had no clue about anything.
He had no clue about the withdrawal. He had no clue about any issues that you
two might have. So what do you think -- what happened there?
A. I
don’t know. I have an open relationship with my husband. We talk about
everything.
Q. Okay.
Can you be a little more detailed, like because that’s really what refused the
application is his –
A. I know.
Q. --
total ignorance about this whole situation, but you said that you talked to him
two days after you put in the reinstatement letter.
A. Correct.
Q. So wouldn’t
in November -- what happened?
A. I
spoke to my husband -- me and my husband, we have an open relationship.
[42]
The explanation offered did not line up at all with
Mr Doherty’s complete lack of knowledge about the withdrawal of sponsorship.
This, coupled with the evidence of Ms Granata’s request for money from Mr
Doherty’s sister, led the IAD to reasonably conclude that there was some other
reason that motivated Ms Granata’s actions.
Conclusion
[43]
It appears that the spousal sponsorship may have
otherwise succeeded, given the visa officer’s preliminary assessment in August
2010 that the marriage appeared genuine, but for the applicant’s withdrawal of
her sponsorship. The withdrawal then led to further questioning which revealed
more inconsistencies in their accounts and which raised valid concerns about
their credibility. The IAD gave the applicant, Ms Granata, ample opportunity to
explain her actions and motivations and she could not do so to the satisfaction
of the IAD.
[44]
The IAD reasonably concluded that Ms Granata had
not met the burden upon her to satisfy on a balance of probabilities that the
marriage was genuine and that it was not entered into primarily for Mr Doherty
to acquire status under the Act. The burden rests on Ms Granata because
she is the applicant and sponsor. However, the assessment of the genuineness
and purpose of the marriage depended on the evidence of both Ms Granata and Mr
Doherty. The IAD considered all the evidence before it and provided a thorough
analysis and reasons that clearly indicate why the IAD determined that the
relationship was not genuine and was entered into to acquire status under the Act.
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