Gjoka v. Canada (Immigration, Refugees and Citizenship)

Gjoka v. Canada (Immigration, Refugees and Citizenship)
Court (s) Database
Federal Court Decisions
Date
2017-04-21
Neutral citation
2017 FC 386
File numbers
IMM-3558-16
Decision Content
Date: 20170421
Docket: IMM-3558-16
Citation: 2017 FC 386
Ottawa, Ontario, April 21, 2017
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
LEKSI GJOKA
Applicant
and
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION [1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the decision of a Member of the Immigration Appeal Division [IAD] of the Immigration and Refugee Board of Canada dated August 2, 2016 [Decision], which dismissed the Applicant’s appeal of his wife’s application for permanent residence as a member of the family class.
II. BACKGROUND [2] The Applicant is a 35-year-old citizen of Albania. He entered Canada as a refugee in 2006 and became a permanent resident in 2013. The basis of his refugee claim was a family feud with another family in his hometown of Shkoder, and he has not returned to Albania since he came to Canada.
[3] In December 2012, the Applicant travelled to Montenegro and was introduced to his now-wife, Silvana Gjoka [Silvana], through a mutual family member. A month later, both families agreed to a marriage between the Applicant and Silvana. The Applicant returned to Canada and communicated with Silvana via telephone.
[4] In June 2013, the Applicant returned to Montenegro and entered into a civil marriage with Silvana on July 22, 2013. The families did not attend the wedding and the marriage was not consummated. Five days after the civil marriage, the Applicant returned to Canada.
[5] On September 18, 2013, the Applicant filed an application to sponsor Silvana for immigration to Canada and was interviewed by a visa officer on February 14, 2014. On June 12, 2014, the application was refused by the visa officer pursuant to s 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] on the grounds that the marriage was not genuine and had been entered into by Silvana primarily for the purpose of acquiring any status or privilege under the Act.
[6] Following the refusal, the Applicant returned to Montenegro and held a wedding celebration with Silvana on July 21, 2014 that was attended by approximately three hundred guests. Since then, the Applicant has often travelled between Canada and Montenegro in order to spend time with Silvana.
[7] The Applicant and Silvana appealed the refusal to the IAD and a hearing was conducted over two half-days on May 19, 2016 and June 13, 2016.
III. DECISION UNDER REVIEW [8] A Decision by the IAD on August 2, 2016 determined that Silvana did not qualify for immigration to Canada in the family class.
[9] The IAD began with a review of the visa officer’s refusal. The application had been refused on the basis that Silvana was excluded due to bad faith under s 4(1) of the Regulations. The decision had been based on: discrepancies between the application forms and interview statements; the absence of the families at the civil marriage ceremony; the lack of a marriage celebration following the civil marriage ceremony; Silvana’s post-nuptial living arrangements; and the scarcity of telephone records and photographs provided. The visa officer concluded the marriage was not genuine and was entered into primarily to acquire status or privilege under the Act.
[10] The IAD then considered the background information related to the Applicant and Silvana, including the circumstances under which they met and married. The IAD also noted the events following the civil marriage ceremony.
[11] Next, the IAD discussed the Applicant’s testimony. With regards to the question of whether Silvana had previously been married, the Applicant responded, “Not as far as I know.” The IAD found this response odd because the factors of age and marital status are usually considered in an arranged marriage.
[12] The IAD also took issue with the Applicant’s testimony that Silvana did not have knowledge of the reason why the Applicant had not returned to Albania. The IAD noted that it was unusual for Silvana not to inquire as to why the Applicant had never visited her family despite the lack of difficulty involved in crossing the Albania-Montenegro border and concluded the information was likely not shared because the marriage was not genuine.
[13] The absence of the families at the civil marriage ceremony was the next consideration. Although Silvana had stated the reason was because the families were busy, she had written in her application that she and the Applicant intended to celebrate the marriage in Canada. The IAD found this odd because their immediate family members resided in Albania and it would be more convenient to celebrate the marriage in Albania; additionally, the intention to celebrate the wedding in Canada heightened the significance of the civil marriage ceremony.
[14] The IAD then assessed the couple’s religious affiliations and beliefs. The Applicant had testified that he and Silvana did not live together after the civil marriage ceremony because, according to Catholic custom, they were required to wait until after the religious ceremony. Additionally, the Applicant explained the reason that they did not have an immediate wedding celebration was because their older family members would have difficulty travelling to Montenegro and because they had assumed the immigration process would be quick enough to allow them to have the celebration in Canada. The IAD took issue with several points with this testimony: there was no evidence of any religious components in the photographs of the wedding celebration; the Applicant later testified that it never came to his mind to have a Catholic ceremony; and the photographs of the wedding celebration included elderly people. Based on these concerns, the IAD concluded that the wedding celebration was for the purpose of the sponsorship application. Additionally, the IAD found the wedding celebration did not address the couple’s intentions at the time of the civil marriage ceremony.
[15] In discussing declarations provided from the Applicant’s family members and friends, the IAD noted that they failed to mention the civil marriage ceremony, which cast further doubt on the couple’s intentions at the time of the civil marriage ceremony.
[16] Looking next to the testimony regarding the day of the marriage proposal, the IAD found discrepancies between the couple’s statements. The Applicant had testified that Sandu Marku, Silvana’s mother, and Silvana’s aunt were present; however, Silvana had testified that only Mr. Marku and her sister were present, although she had previously stated the proposal was attended by her mother and the Applicant’s sister-in-law. The Applicant also testified that after the initial meeting, he did not see Silvana again until the summer of 2013; conversely, Silvana stated they had met again a few days after the proposal. The IAD did not find the explanations for these discrepancies to be reasonable, particularly because the occasion was so important.
[17] The IAD also found the Applicant’s testimony to be vague without sufficient explanation, noting: that he could not recall the hotel where the marriage had been consummated; the lack of specificity regarding their conversations; the failure to recall whether his friends had met Silvana during visits to Albania; and the inconsistency between his answer and his wife’s with regards to how often Silvana visited her family.
[18] Additionally, the IAD took issue with the discrepancy between the Applicant’s testimony regarding his travels to Montenegro and the supporting documentation provided.
[19] With regard to Silvana’s testimony, the IAD also found her answers to be vague. The IAD noted: the failure to recall any memorable moment with the Applicant; the failure to recall the name of the village in which the couple had stayed together for months; the failure to recall when she received her engagement ring or who was with her at the time; the discrepancy between answers with regards to whether the Applicant had spoken to her cousins in Canada; and the failure to recall how often she saw the Applicant on his trip to Montenegro in December 2013.
[20] Moreover, the IAD took issue with the discrepancies between the couple’s answers. The Applicant had stated he sent Silvana $2,000 every one or one-and-a-half months for a total of four to five payments; Silvana testified he sent funds in the amounts of $500 or $1,000 but could not recall the frequency. Additionally, the Applicant testified the couple had never stayed with relatives but Silvana stated they had stayed at a relative’s residence in Tuzi, Montenegro.
[21] The lack of evidence regarding the couple’s plans for the future was also considered by the IAD to be not indicative of a genuine marriage. Although the Applicant testified about their plans regarding children, there were no other concrete plans.
[22] The IAD acknowledged the Applicant’s frequent travels to Montenegro after the civil marriage ceremony; however, the IAD also noted that the Applicant had also travelled to Montenegro in June 2012, prior to meeting Silvana. The IAD found that this demonstrated his visits were also for the purpose of visiting his other family members.
[23] Additionally, the IAD took into consideration the evidence provided by the Applicant; specifically, the telephone bills, invoices from a jeweller, and an appraisal of an engagement ring. However, the IAD found the couple’s lack of knowledge of each other despite extensive communication was not indicative of a genuine marriage. Furthermore, the Applicant’s failure to recall the trip in which the engagement ring was presented to Silvana raised concerns about whether the ring was purchased to bolster their application.
[24] Finally, the IAD mentioned some positive factors, including the Applicant’s frequent trips to Montenegro and the engagement ring. However, the IAD found the positive factors were not sufficient to overcome the concerns of the visa officer; namely, the inconsistencies in the couple’s testimonies, the lack of evidence as to why the marriage was considered to be compatible, the lack of knowledge between the couple concerning each other’s background, and the lack of future plans.
[25] The IAD also noted that although Silvana did not have immediate family in Canada, she was the eldest of four siblings and her entry could facilitate her siblings’ eventual entry.
[26] After consideration of all the evidence, the IAD concluded on a balance of probabilities that the marriage was not genuine and was entered into primarily to facilitate Silvana’s entry to Canada. Accordingly, the appeal was dismissed.
IV. ISSUES [27] The Applicant submits the following are at issue in this application:
(1) The IAD’s allegation that Silvana’s primary intention is to gain admission to Canada and sponsor her family is mere speculation and not supported by evidence.
(2) The IAD failed to take into consideration the cultural context and, instead, rendered an unreasonable Decision by relying on insignificant discrepancies and misconstruing the evidence in support of the application.
V. STANDARD OF REVIEW [28] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[29] This Court has held that the determination of whether a marriage is genuine is a question of mixed fact and law, which attracts a reasonableness standard: Bercasio v Canada (Citizenship and Immigration), 2016 FC 244 at para 17.
[30] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS [31] The following provisions from the Act are relevant in this proceeding:
Application before entering Canada
Visa et documents
11 (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
11 (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la présente loi.
…
…
Appeal allowed
Fondement de l’appel
67 (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of,
67 (1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé :
(a) the decision appealed is wrong in law or fact or mixed law and fact;
a) la décision attaquée est erronée en droit, en fait ou en droit et en fait;
(b) a principle of natural justice has not been observed; or
b) il y a eu manquement à un principe de justice naturelle;
(c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.
c) sauf dans le cas de l’appel du ministre, il y a — compte tenu de l’intérêt supérieur de l’enfant directement touché — des motifs d’ordre humanitaire justifiant, vu les autres circonstances de l’affaire, la prise de mesures spéciales.
[32] The following provisions from the Regulations are relevant in this proceeding:
Bad faith
Mauvaise foi
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
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) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
a) visait principalement l’acquisition d’un statut ou d’un privilège sous le régime de la Loi;
(b) is not genuine.
b) n’est pas authentique.
…
…
Family class
Catégorie
116 For the purposes of subsection 12(1) of the Act, the family class is hereby prescribed as a class of persons who may become permanent residents on the basis of the requirements of this Division.
116 Pour l’application du paragraphe 12(1) de la Loi, la catégorie du regroupement familial est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents sur le fondement des exigences prévues à la présente section.
Member
Regroupement familial
117 (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
117 (1) Appartiennent à la catégorie du regroupement familial du fait de la relation qu’ils ont avec le répondant les étrangers suivants :
(a) the sponsor’s spouse, common-law partner or conjugal partner;
a) son époux, conjoint de fait ou partenaire conjugal;
VII. ARGUMENTS A. Applicant (1) Third Party Affidavit [33] The Applicant has filed a third party affidavit instead of a personal affidavit for two reasons. First, a third party affidavit is permissible when the alleged errors appear on the face of the record, as is the case in this judicial review: Koky v Canada (Citizenship and Immigration), 2011 FC 1407 at para 24. Second, both the Applicant and Silvana were out of the country at the time of filing, which created logistical difficulties in filing personal affidavits.
(2) Speculation [34] The Applicant submits that the IAD speculated about Silvana’s intent without supporting evidence. The IAD found the marriage was entered primarily to allow Silvana entry into Canada and to facilitate her family’s admission to Canada. However, the testimony noted to support this finding was used out of context and was not provided spontaneously by the Applicant; rather, it was a response to a leading question from the IAD, which diminishes its evidentiary value.
[35] Apart from this testimony, there is no other evidence to support the IAD’s finding that the decision to marry was a ploy. Besides her marriage to the Applicant, Silvana has no obvious pull to Canada: she was an 18-year-old from a rural Albanian village; she does not speak English; she had no employment history; she had never lived away from her family; she had only distant cousins in Canada; and she had never previously attempted to enter Canada. There is also no evidence that she would meet the minimum necessary income required to sponsor her family. Furthermore, this concern was never put to Silvana and is a breach of her right to procedural fairness.
[36] Additionally, the IAD failed to consider the evidence that demonstrated the marriage was genuine. For example, the fact that the Applicant filed a sponsorship application quickly after the civil marriage is more obviously indicative of the couple’s desire to be together as soon as possible and start a family. Moreover, the deferral of the marriage celebration was due to the Applicant’s inability to return to Albania and the interruption of his earnings as a result of the frequent trips he had to make to Montenegro to be with his wife following the refusal.
(3) Cultural Context [37] In Gill v Canada (Citizenship and Immigration), 2010 FC 122 [Gill] at paras 7-8, Justice Barnes held that when looking at the genuineness of the marriage, the IAD must be careful not to apply Western conceptions of marriage and that the assessment of evidence should not be concerned with trivial, inconclusive, or irrelevant matters while ignoring considerable contradictory evidence.
[38] The Applicant submits that the IAD did not understand the interactions between a husband and wife differ in Albania from Western cultural norms. In the Decision, the IAD wrote, “…it is simply not believed that she would not have asked about his past or her family would not have made inquiries given that the appellant’s fear of return to Albania is so great that he stays in Montenegro, rather than entering Albania.” First, the inference that Silvana had not asked questions regarding the Applicant’s past is inaccurate: in actuality, she was aware of the blood feud but did not ask for details as she understood the Applicant did not wish to discuss it. This is confirmed in Silvana’s interview with the visa officer on February 18, 2014 and the Applicant’s testimony at the IAD hearing. Second, details regarding death or tragedy are not part of the custom of arranged marriages in Albania, a patriarchal society where women are dependent and subordinate to men. In light of the cultural context, it is reasonable for Silvana not to have known the details of the Applicant’s blood feud and this should not have been viewed as amounting to a lack of genuineness.
[39] The Applicant also argues that the IAD misinterpreted the customs surrounding the wedding celebration. A religious element is not required; instead, attendees gather to publicly celebrate the union. The IAD took issue with the lack of a religious element in the wedding celebration, but the Applicant had clarified at the hearing that Albanian culture requires a declaration to the community of the union before the marriage can be consummated. The IAD misunderstood this and drew an adverse inference from the lack of a religious component in the wedding celebration.
(4) Material and Supporting Evidence [40] The Applicant contends that the IAD was prone to speculation and disregarded significant portions of evidence in the Decision.
[41] The IAD found that the couple had conducted the wedding celebration for the purpose of the sponsorship application and to address the concerns of the visa officer. However, the Applicant explained that the decision to have the wedding celebration in 2014 was due to the realization that the sponsorship process would take a long time and Silvana would not be able to reside with the Applicant’s family in the meantime. The IAD’s failure to mention the Applicant’s explanation is unreasonable and is akin to the deficiencies identified in Paulino v Canada (Citizenship and Immigration), 2010 FC 542 and Basra v Canada (Minister of Citizenship and Immigration), 2009 FC 535, where the decision-makers discounted evidence without engaging in a weighing analysis.
[42] The same problem arises in the IAD’s treatment of the declarations from the Applicant’s friends and family. Rather than focusing on what the documents actually say, the IAD focused on what the documents did not say; this is a reviewable error: Mahmud v Canada (Minister of Citizenship and Immigration), [1999] FCJ No 729 at para 11 [Mahmud]. The Applicant submits that it was unreasonable for the IAD to draw a negative inference from the fact that the letters did not mention the civil marriage, especially considering the Applicant’s testimony that the public wedding celebration is what is important in Albanian culture.
(5) Indicia of Compatibility [43] The Applicant also submits that the IAD erred in finding that there was no evidence as to why the couple was considered compatible when, in fact, there were several important indicia of compatibility: they were both from Shkoder; the marriage was arranged by their families; neither had been previously married; they had comparable levels of education; they spoke the same language; and they are both Catholic. Furthermore, the IAD was over-analytical in regards to the Applicant’s response to the question whether Silvana had been previously married; English is not the Applicant’s first language and his answer, “Not as far as I know,” was just a phrase.
(6) Inconsistencies [44] The Applicant argues that the IAD did not engage with the important available evidence; rather, the IAD focused on insignificant discrepancies in the testimony and information contained in the documentation to find the marriage was not genuine. Some of the identified inconsistencies were not in fact inconsistencies. For example, the Applicant testified that the couple were not using birth control despite not trying to get pregnant; this is not an inconsistency. Nor is the Applicant’s testimony regarding the date of the civil marriage ceremony; the IAD stated that he testified he remained in Montenegro for a month after the civil marriage ceremony but he actually testified that he arrived a month before the civil marriage ceremony. This misapprehension of the evidence was used to support the IAD’s claim that the Applicant attempted to bolster the genuineness of the marriage, but it is unfounded. The IAD also took issue with the Applicant’s inability to recall details such as the names of hotels, length of travel, and frequency of remittances, all of which can be reasonably attributed to inevitable memory gaps due to the passage of time. Similarly, other details that could not be recalled, such as how frequently Silvana visits her family, can be explained by errors of approximation and the fact that the couple live far apart from one another. Finally, the fact that the couple discuss mundane matters and cannot recall a notable event that occurred the week prior is not a factor that should be considered in the determination of the genuineness of the marriage.
[45] It is submitted that it was improper for the IAD to base its findings on irrelevant and peripheral matters, as “[a]dverse plausibility findings should only be made in the clearest of cases, where the facts presented are so outside the realm of what could reasonably be expected that the trier or fact can reasonably find that it could not have possibly happened”: Divsalar v Canada (Minister of Citizenship and Immigration), 2002 FCT 653 at para 24.
[46] The IAD’s conclusions were essentially plausibility findings dependent on negative inferences that are not supported by facts or logic while ignoring extensive supportive evidence. Additionally, the Decision is culturally insensitive and does not account for the practices and expectations of the patriarchal society in which Silvana lives. The IAD’s inferences and conclusions also do not address the strong evidence that supports the opposite conclusion.
B. Respondent (1) Weight of Evidence [47] The IAD is fully entitled to determine the plausibility and credibility of the testimony and the evidence which is before it, as credibility and weight of evidence are matters for a tribunal to decide. The Respondent submits that, in the Decision, the IAD took issue with multiple inconsistencies and problems with the evidence and the Applicant’s arguments are a thinly disguised attempt to reargue the evidence to obtain a different result.
(2) Findings Based on Evidence [48] The Respondent argues that the IAD’s findings were based on all the evidence and the reasons were focused on, although not limited to, the genuineness of the Applicant’s marriage. This evidence was also applicable to determining that the relationship’s primary purpose was to achieve status under the Act, which is reasonable since evidence that leads to a finding that the marriage is not genuine raises the presumption that it was entered into for the purpose of gaining status: Kaur v Canada (Citizenship and Immigration), 2010 FC 417 [Kaur] at para 16.
[49] The IAD also did not speculate about the Applicant’s intent without the support of evidence; it is actually the Applicant’s own testimony that was used. The Applicant stated:
[APPLICANT]: …And the second thing was I wanted to apply as far as I could. So I can get together with her here.
…
[APPLICANT]: The second reason was because I thought we were going to have a fast applying…for a visa.
…
MR. HARSANYI: Okay. So your plan was to then have a marriage – you know it was your understanding that when you say visa you mean the spouses sponsorship?
[APPLICANT]: Yes, I thought there will be an approval, and she’ll come here and we would do the marriage here.
[50] In assessing intent, the IAD correctly considered the Applicant’s testimony about what he was thinking prior to the marriage in 2013. In Gill, above, at para 29, the Court confirmed that s 4 of the Regulations contains two distinct tests: an assessment of whether the impugned marriage is not genuine and an assessment of whether the marriage was entered into primarily for the purpose of acquiring any status under the Act. In regards to the latter, the focus is on the intentions of the parties at the time of the marriage, which was the IAD’s focus in the present case. The Respondent submits that there is no reviewable error and the Applicant merely seeks to reargue the evidence, but it is not for the Court to reweigh the evidence.
(3) Cultural Context [51] The Respondent contends that the IAD did not fail to demonstrate cultural sensitivity; rather, the refusal was based on multiple inconsistencies and contradictions in testimonies, vague answers, and other serious issues. The Albanian cultural context was considered but did not explain the inconsistencies in the evidence. The Respondent submits that the Applicant’s argument is an attempt to distract from the material issues, which are the credibility concerns identified in the reasons.
[52] Credibility is an aspect central to the analysis of the genuineness of a relationship: Keo v Canada (Citizenship and Immigration), 2011 FC 1456 at para 23. Thus, the IAD’s examination of the testimony related to the circumstances of the relationship, the type of wedding, and contradictory evidence of actual cohabitation in 2013 and 2014 was not an erroneous approach. The jurisprudence requires the IAD to demonstrate cultural sensitivity and evaluate a marriage within the cultural context in which it took place, but there is no specific test established for determining whether a relationship is genuine; the relative weight to be given to the evidence is exclusively determined by the tribunal: Zheng v Canada (Citizenship and Immigration), 2011 FC 432 at para 23.
[53] Contrary to the Applicant’s argument, the IAD recognized that arranged marriages in Albania occur within a patriarchal culture; however, given that it was an arranged marriage, the IAD found no reasonable explanation as to why Silvana learned only a month prior to her testimony about why her husband was unable to return to Albania. This is not a speculative error fueled by cultural insensitivity, but a credibility finding that was considered by and reasonably open to the IAD based on the evidence.
(4) Inconsistent Evidence [54] The Respondent submits that the IAD did not misapprehend the evidence about a religious wedding since the Applicant clearly indicated the personal significance of a religious ceremony in his testimony. Thus, it was open for the IAD to draw an adverse inference from the inconsistency between the Applicant’s testimony about the importance of a religious ceremony and his later testimony that he could not find a Catholic church in Montenegro or had not discussed the matter with his Catholic spouse. The Applicant’s testimony on the issue was inconsistent throughout the hearing, which led to the IAD’s finding a lack of credibility in the Applicant’s responses.
[55] Additionally, the Respondent submits that given the Applicant’s testimony about the importance of the religious ceremony, the Applicant’s argument that the IAD confused the wedding celebration with a religious ceremony is absurd.
(5) Evidence Not Overlooked [56] The Respondent argues that the IAD did not disregard the Applicant’s reason for the wedding celebration. The IAD assessed all the evidence, with regard to the photos depicting elderly people in particular, and noted that there was no evidence that it caused them difficulty to travel, which contradicts the Applicant’s testimony that the couple chose to only have a civil marriage ceremony because it would be difficult for their elderly relatives to travel to Montenegro. Given the contradiction, it was reasonable for the IAD to make the credibility finding that the couple had a wedding celebration for the purpose of the sponsorship application and to address the visa officer’s concerns.
[57] Moreover, a tribunal is presumed to have considered all the evidence before it even if it does not address specific evidence: Lai v Canada (Minister of Citizenship and Immigration), 2005 FCA 125 at para 90. The mere fact of not mentioning all of the evidence is not sufficient to rebut the presumption: Vézina v Canada (Citizenship and Immigration), 2011 FC 900 at para 19. As determined in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 14, adequacy of reasons is not a stand-alone basis for judicial review. In the present case, the IAD provided adequate reasons to satisfy the duty of fairness by detailing the discrepancies and explaining why the discrepancies led to the final conclusion. Furthermore, the cultural context was considered but could not explain the discrepancies.
[58] Contrary to the Applicant’s submissions, the IAD did not fail to weigh the positive evidence in the Applicant’s favour; this evidence was specifically considered but was insufficient to overcome the negative evidence, such as the contradictory and vague testimony.
[59] Nor did the IAD err in noting that the letters from the Applicant’s family and friends failed to mention the civil marriage ceremony. The Applicant had testified that their immediate family members did not attend the civil marriage ceremony because they were too busy, which raised concerns regarding the couple’s intent; thus, it was reasonable for the omission to be noted. Additionally, the IAD did not find that the letters contradicted the Applicant’s evidence, but that they had limited value for supporting a genuine intent in 2013.
[60] The IAD’s finding that there was no evidence presented regarding why the families considered the couple to be a compatible match is reasonable because the evidence was not before the tribunal. The Respondent submits that it was not incumbent on the IAD to be persuaded that the mere sharing of a common nationality, language, and religion is sufficient evidence of compatibility for the purposes of finding a marriage genuine.
[61] The Respondent also submits that it is absurd to suggest the IAD did not engage with the available evidence; the evidence was considered but not persuasive. For example, the IAD had considered the evidence for the Applicant’s trips to Montenegro, but found the trips were not persuasive in light of the lack of knowledge the couple had regarding each other, in addition to other issues in the evidence. The IAD’s alleged misapprehension regarding the date the Applicant left Montenegro is not a basis for judicial review, as the IAD did not base its Decision on this alleged error of fact. Additionally, the Applicant fails to address the other issues respecting the reliability of his testimony in regards to the dates of travel.
[62] The IAD did not fail to consider relevant evidence, nor did it make any plausibility findings or base its Decision on irrelevant and peripheral matters. The adverse inferences drawn from the vague testimony and inability to provide details or notable events were open to the tribunal in light of the testimony about the couple’s frequent communications.
[63] Since there is no specific test established for determining the genuineness of a marriage, the IAD is exclusively entitled to determine the relative weight that should be given to the evidence. The IAD is also entitled to determine the plausibility and credibility of the evidence before it. There is no basis for interfering with the Decision because the conclusions and inferences drawn by the IAD were reasonably open to it on the record.
C. Applicant’s Reply (1) Primary Purpose of the Marriage [64] In Kaur, above, the identified discrepancies were significant and irreconcilable and Justice Zinn held that the analysis was reasonable because the IAD explicitly relied on the discrepancies in the couple’s testimony. In the present case, however, the IAD placed too much emphasis on trivialities and relied on the couple’s engaging in a truncated process to expedite reunification to Canada. The latter is an error because the sponsorship provisions of the Act have an objective of spousal reunification and that purpose would be defeated if the desire to reunite is evidence that a relationship is entered into for immigration purposes: Tamber v Canada (Citizenship and Immigration), 2008 FC 951 at para 19 [Tamber].
[65] The IAD distorted the purpose and intent of the civil marriage ceremony. Canada was chosen as the country of reunification based on the Applicant’s status as a refugee facing persecution in Albania; since the couple cannot return to Albania, they chose to have a truncated civil marriage ceremony without the traditional wedding celebration.
[66] The inference that Silvana would be interested in entering Canada to facilitate sponsorship for her family under the family class is not reasonably drawn; it is speculation and lacks evidentiary support. This finding is not justified, intelligible, nor does it fall within a range of accepted outcomes.
(2) Cultural Insensitivity [67] The IAD also found that inquiries regarding the blood feud were not made; however, there were no facts to support this finding. In fact, Silvana testified that she knew about the blood feud but did not ask for details. This is plausible in a patriarchal society where the husband serves as authority over his wife. The Applicant testified that he did not want to talk about death or tragedy, but the IAD dismissed this as “simply not believed.” The Applicant submits that this is a speculative plausibility finding that cannot stand.
(3) Factors of Compatibility [68] The Decision states “there is no evidence presented why their families considered this match to be compatible,” which is a clear demonstration that the IAD did not consider the compatibility factors. The IAD did not turn its mind to the evidence and therefore did not truly weigh the positive and negative evidence.
(4) Overreliance on Inconsistencies and Rejection of Reasonable Explanations [69] The IAD relied on minor, often perceived inconsistencies and contradictions, in addition to problematic value judgments. As stated in Tamber, above, at paras 18-21, an emphasis on trivial inconsistencies without enough attention paid to the substantive evidence in support is an error. For example, the IAD dismissed the wedding celebration as being only for the purpose of the application based on an invented inconsistency, even though the Applicant testified that the couple initially did not want to hold the wedding celebration in Montenegro so as not to burden their family and friends with the inconvenience of travel; however, they ultimately conducted the wedding celebration in Montenegro due to the circumstances that arose after the sponsorship application was denied. Furthermore, the failure to address this explanation is a reviewable error: Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 at para 17.
VIII. ANALYSIS [70] There were certainly some inconsistencies in the evidence of Silvana and the Applicant but the IAD has committed fundamental errors in this Decision that necessitate its return for reconsideration by a differently constituted IAD. Generally speaking, the problems with the Decision are not about the weighing of the evidence; the IAD either gets the facts wrong, overlooks a reasonable response, or simply ignores significant facts. I am in agreement with many of the points made by the Applicant and will set out the most important ones below.
A. Quick Process to Obtain Visa [71] The IAD found that because “the appellant testified that they married in a civil wedding thinking that it would be a quick process for the applicant to get a visa to Canada, I find that the primary purpose of this marriage was to facilitate the applicant’s entry to Canada.” The IAD then goes on to suggest that Silvana’s “entry to Canada could help facilitate her siblings’ eventual entry to Canada.” The clear implication is that the purpose of the civil wedding was to allow Silvana to gain quick access to Canada so that she could sponsor her siblings. There is no evidence to support this inference.
[72] The Applicant’s evidence was to the effect that, following the civil wedding ceremony, they waited for Silvana to come to Canada so that they could