Granata v. Canada (Minister of Citizenship and
Immigration)
Between
Angela Marie Granata, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Angela Marie Granata, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 1303
2013 FC 1203
Docket: IMM-10061-12
Federal Court
Toronto, Ontario
Kane J.
Heard: November 14, 2013.
Judgment: November 29, 2013.
Docket: IMM-10061-12
Federal Court
Toronto, Ontario
Kane J.
Heard: November 14, 2013.
Judgment: November 29, 2013.
(44 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 KANE J.:-- 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 Actand 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 SCR 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:
...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?
I don't know. I have an
open relationship with my husband. We talk about everything.
Okay. Can you be a
little more detailed, like because that's really what refused the application
is his -
I know.
--total ignorance about
this whole situation, but you said that you talked to him two days after you
put in the reinstatement letter.
Correct.
So wouldn't in November
-- what happened?
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.
JUDGMENT
· THIS COURT'S JUDGMENT is that:
The application for
judicial review of the decision of the Immigration Appeal Division [IAD] of the
Immigration and Refugee Board made on September 6, 2012 is dismissed.
There is no question for
certification.
KANE J.
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