Tuesday, March 8, 2011

CONTRADICTIONS OBVIOUS IN SPONSORSHIP CASE

Somewhat humorous narrative, but the contradictions are transparent... Note also that the applicant is a failed refugee claimant who was ordered deported; she seems to have been in the country for several years claiming various status. These types of cases should be an example of why we need costs orders against those who just want to stall or engage in mulitple applications.

George v. Canada (Minister of Citizenship and Immigration)


Anthony Curtis George, appellant, and

Minister of Citizenship and Immigration, respondent

[2010] I.A.D.D. No. 980

[2010] D.S.A.I. no 980

No. TA8-12926
Immigration and Refugee Board of Canada

Immigration Appeal Division

Toronto, Ontario
Panel: Benjamin R. Dolin, D. Collison, S. J. Morris

Heard: March 30, 2010.

Decision: June 25, 2010.

(27 paras.)
_______________________________________

Sponsorship

Reasons for Decision

Introduction

1 These are the reasons for the decision in the appeal of Anthony Curtis GEORGE (the appellant) from the refusal of an application for a permanent resident visa made by Janine Francine DOYLE (the applicant). The appellant married the applicant in June 2007 and attempted to sponsor her as a member of the family class. The application was refused because a visa officer determined that the marriage is not genuine and was entered into primarily for the purpose of acquiring status under the Immigration and Refugee Protection Act (IRPA).

Issue and Decision

2 To succeed on appeal, the appellant must show either that the marriage is genuine or that it was not entered into for the purpose of the applicant gaining privilege under the Act; i.e., that section 4 of the Immigration and Refugee Protection Regulations (the Regulations) does not apply.

3 Having considered the evidence and submissions of the parties, I find that the appellant has not met his onus.

4 The appeal is dismissed.

Background

5 The applicant is a 30 year old citizen of St. Vincent and the Grenadines. She has two children: a son born in 1997, and a daughter born in 2000. Leaving her children with her mother, the applicant came to Canada as a visitor in December 2001. She applied to extend her stay in Canada, but was denied. She then claimed refugee status, indicating that she feared for her life in St. Vincent after having witnessed a drug deal. Her refugee claim was rejected and she was ordered to leave Canada in October 2002. She did not depart for some time.

6 The appellant is a 52 year old Canadian citizen. He is originally from Trinidad and Tobago. He claims to have met the applicant in 2002 when the applicant was employed by his sister as a nanny in Toronto. The appellant testified that in late 2003 they began a romantic relationship and dated for a number of years. He also indicated that on January 1, 2007 he proposed to the applicant.

7 At the time of the alleged proposal, there was an outstanding removal against the applicant. The appellant claimed to have been unaware of her immigration problems until they decided to marry. At some point in the spring of 2007, the applicant received a letter requesting that she attend a pre-removal interview. The appellant and applicant married in a small ceremony at Toronto City Hall on June 4, 2007. The applicant boarded a plane and departed Canada the next day.

8 When the appellant commenced a sponsorship application, the applicant was required to attend a visa post interview. Following the interview, a refusal letter was issued in which the visa officer enumerated the following concerns:

• - When asked about the development of their relationship, the applicant mostly spoke of her immigration history.

• - She demonstrated little knowledge of her sponsor.

• - Even though the appellant works as a professional photographer, there were hardly any photographs of the two from their claimed years of dating.

• - The applicant's immigration history and the fact that they married the day before she departed Canada suggests that she married the appellant simply to gain status in Canada.

9 The appellant, who was represented by counsel, testified at the de novo hearing. The applicant testified by teleconference. The appellant's mother, Joan George, and the appellant's friend and colleague, Alff Henry, also testified. Documentation was submitted, which included, inter alia, letters from friends and family, internet chat records, photographs and financial records.1 Having run out of hearing time, the appellant and respondent were invited to provide written submissions. The appellant's submissions were received April 13, 2010, the Minister's response was filed April 30, 2010, and a final reply was tendered by the appellant on May 7, 2010.

Analysis and Findings of Fact

10 Section 4 of the Regulations reads as follows:


• 4. Bad faith - For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.

11 The test involved thus comprises two prongs. To succeed on appeal, the appellant must prove, on a balance of probabilities, either that the marriage to the applicant is genuine or that it was not entered into primarily for the purpose of acquiring status under the Immigration and Refugee Protection Act (IRPA). As confirmed by the Supreme Court of Canada in F.H. v. McDougall,2 the evidence must always be clear, convincing, and cogent in order to satisfy the balance of probabilities test.

The Appellant's Position

12 Counsel for the appellant submits that the visa officer over-emphasized the applicant's immigration history in reaching the conclusion that her marriage to the appellant is not bona fide. Counsel argues that the appellant's viva voce testimony was forthright and that there were no significant discrepancies, contradictions or inconsistencies. He provided a history of the development of their relationship. Although he could not recall certain specific dates and events, his evidence is supported by letters from family and friends, as well as the viva voce testimony of his mother.

The Minister's Position

13 The Minister characterizes the applicant's marriage to the appellant as a last ditch effort to obtain status in Canada after a series of immigration applications failed. Her application for a work permit was refused, her refugee claim was rejected and a Pre-Removal Risk Assessment was unsuccessful. Her decision to marry only came when removal was imminent. Counsel for the Minister further submits that neither the appellant nor applicant were credible witnesses as their evidence of a long dating history was inconsistent and implausible. The appellant's claim that he was not aware of the applicant's immigration history and had no knowledge of the basis of her refugee claim suggests that they did not have a close relationship and his inability to recall specific dates and milestones, such as their first sexual encounter, undermined his credibility.

14 In his written submissions, counsel for the Minister enumerates a number of other concerns, including:

• - The appellant is 22 years older than the applicant, and their testimony that the age difference was not an issue was not believable.

• - It is unreasonable that the appellant would propose marriage without first meeting the applicant's children.

• - The marriage was hastily planned and poorly attended.

Analysis

15 There exists a presumption in law that sworn testimony should be considered truthful, unless there is good reason to doubt its veracity.3 Inconsistency and implausibility may be taken into consideration in assessing the credibility of testimony, in addition to its rationality and common sense.4

16 In this appeal, there were a number of problematic areas, but I found two significant discrepancies to be particularly troublesome.

17 First of all, the appellant and applicant were both asked if they used birth control when the appellant visited St. Vincent in 2008. He testified that they did not, but she claimed they used both condoms and the pill. No explanation has been offered for this contradiction. (Indeed, it is not even mentioned in the written submissions of either counsel.) I might accept that the appellant did not know the applicant was on the pill, but for him to state that they did not use any birth control when she says he wore condoms clearly undermines their claim of a sexual relationship on that trip.

18 Secondly, the appellant testified that he first found out about the applicant's "immigration problems" in March or April of 2007 (i.e., after they had already decided to marry), but did not know about her refugee claim until after his sponsorship was refused and he saw the Appeal Record. At the time of the appeal hearing, the appellant claimed that he had still not spoken to the applicant about her refugee claim and was not aware what it was based upon. In contrast, the applicant testified that after they got engaged, she told him everything about her immigration situation, including her refugee claim. She could not recall the precise date, but confirmed that she told him about her refugee proceedings before she left Canada in June 2007.

19 The discrepancies identified by counsel for the Minister with respect to the history of their relationship were not, to my mind, as problematic. In the case Valverde v. Canada (Citizenship and Immigration), the court held that minor inconsistencies are to be expected in these types of cases. In that case, Justice Barnes recalled the Lerner and Loewe lyrics from the song "I Remember It Well", which suggests that marital memories can be fleeting:5

He: We met at nine

She: We met at eight

He: I was on time

She: No, you were late

He: Ah, yes, I remember it well...

20 That said, the contradictory evidence with respect to the use of contraceptives in 2008 and the appellant's knowledge of the applicant's refugee claim must be seen in a different light. It would be unreasonable for the appellant to forget that he used condoms during his last period of intimacy with the applicant. The most likely explanation for this discrepancy is that they did not, in fact, have sexual relations during that trip, which supports the Minister's contention that this is a union of convenience entered into by the appellant to help the applicant obtain status.

21 Their inconsistent testimony about when the appellant found out about the applicant's refugee claim was problematic from two angles. Apart from being a significant contradiction, it is inconsistent with a genuine relationship that the appellant would not share in this knowledge. Indeed, he seemed to have little interest in knowing about it at present, even though the applicant had claimed that her life might be in danger if she returned to her home country, and her rejected claim was an obvious concern for the visa officer who assessed the sponsorship.

22 In addition to the above, I also find that the appellant has failed to satisfactorily address the applicant's poor performance at the visa post interview. They did not dispute the accuracy of the CAIPS notes, which indicated that the applicant could provide little information about the development of their relationship and the appellant's employment, and she did not know his residential address. Also problematic was the applicant's explanation regarding the paucity of photographs of them together, despite the fact that the appellant is a professional photographer and their claim that they had dated for several years in Canada. The appellant claimed that he does not like to take photographs unless it is for his work, but when asked about photographs of them at events or activities in her Sponsored Spouse Questionnaire, the applicant indicated that the appellant "was always the photographer."6 The appellant's only explanation was that the applicant might have misunderstood the question being posed of her.

23 Finally, there was a discrepancy relating to when the applicant claimed to have accepted the appellant's proposal of marriage. At the visa post, she claimed that she did not accept until over a month later, on Valentine's Day.7 When asked in her Sponsored Spouse Questionnaire about celebrating the engagement, however, she indicated that they told everyone of their engagement on January 2.8 When asked about this contradiction, the applicant tried unconvincingly to suggest that although she agreed to marry him right away, she did not accept "wholeheartedly" until Valentine's Day. Her testimony in this regard made no sense whatsoever.

Conclusion

24 I did not find the appellant and applicant to be credible and do not accept as plausible the appellant's claims regarding his lack of knowledge of the applicant's immigration problems. When examined in the context of her immigration history and their hasty wedding, it seems more likely than not that the appellant agreed to marry the applicant to help her obtain status and that he is not being truthful about his knowledge of her past attempts to remain in Canada by whatever means possible.

25 I also note the Federal Court decision in Roopchand v. Canada (Citizenship and Immigration), [2007] FC 1108, where it was held, at paragraph 4:
• As a practical matter, a person's intent is not likely to be successfully tested by a grilling cross-examination designed to elicit an admission of fraud or dishonesty. Rather, in the usual case, the trier of fact will draw inferences from such things as inconsistent or contradictory statements made by the parties, the knowledge the parties have about each other and their shared history, the nature, frequency and content of communications between the parties, any financial support, and any previous attempt by the applicant spouse to gain admission to Canada.

26 Although reasonably well scripted, there are a number of clear inconsistencies that undermined their viva voce evidence. In these circumstances, the evidence of other family members and friends that they believe the relationship to be genuine is insufficient to establish that section 4 of the Regulations does not apply to this marriage.

27 The appeal is dismissed.

NOTICE OF DECISION

The appeal is dismissed.

"Benjamin R. Dolin"

"D. Collison"

"S. Morris"

25 June 2010

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