Date: 20030908
Docket: IMM-5034-02
Citation: 2003 FC 1043
Ottawa, Ontario, September 8, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
ABDELAZIZ KOULAMALLAH
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Taya di Pietro of the Immigration Appeal Division of the Immigration and Refugee Board [Appeal Division], dated October 7, 2002, that dismissed, for lack of jurisdiction, the appeal filed by Abdelaziz Koulamallah [the applicant] from the refusal of the sponsored application for landing of his wife, Ousmane Ibtissim Mahamat.
ALLEGED FACTS
[2] The applicant is a citizen of Chad and is 39 years old.
[3] On February 15, 1984, he married Ahmed Mariam. Two children were born of this union. The applicant submits that the marriage was solemnized traditionally, in accordance with Muslim custom, before the Islamic Committee of N'Djamena. In accordance with Koranic law, he claims that the marriage was dissolved three months and 15 days after his request, because they were no longer living together. The applicant says that the divorce has been effective since February 6, 1992.
[4] On February 20, 1998, the applicant and Ousmane Ibtissim Mahamat (the wife) were married in Chad.
[5] The applicant arrived in Canada on April 22, 1998, and was granted Convention refugee status on June 3, 1999. He has since qualified for permanent resident status in Canada.
[6] The applicant's wife made a sponsored application for landing in Canada as a member of the family class.
[7] Her application was refused by an immigration officer on the basis that she did not meet the statutory definition of "spouse".
[8] Section 2(1) of the former Immigration Regulations defines the term "spouse", with respect to any person, as "the party of the opposite sex to whom that person is joined in marriage." Marriage is defined as "the matrimony recognized as a marriage by the laws of the country in which it took place, but does not include any matrimony whereby one party to that matrimony became at any given time the spouse of more than one living person."
[9] On July 25, 2001, the immigration officer was not satisfied that the applicant was divorced from his first wife at the time that he entered into marriage with his second wife.
[10] The applicant exercised his statutory right to appeal and appealed the immigration officer's decision.
[11] The Appeal Division found that the applicant was not legally divorced from his first wife at the time that he entered into the marriage with his second wife.
[12] It is this decision that is the subject of this application for judicial review.
ISSUES
[13] 1. Is the new evidence submitted by the applicant admissible?
2. Did the Appeal Division err in finding that the applicant was not legally divorced from his first wife at the time that he entered into marriage with his second wife?
ANALYSIS
1. Is the new evidence submitted by the applicant admissible?
[14] In support of his evidence and in order to clarify the rules of Koranic law, the applicant has appended a number of documents to his new affidavit dated November 18, 2002.
[15] In fact, Exhibits A, B, C, D, F and G, appended to his affidavit, are documents that were not before the panel when the decision was made on October 7, 2002.
[16] In judicial review proceedings, the courts have consistently held that the Federal Court is bound by the record filed before the administrative tribunal. New evidence submitted by the parties that was not before the administrative tribunal cannot be considered in an application for judicial review. See, for example, Lemiecha et al. v. Minister of Employment and Immigration (1993), 72 F.T.R. 49 at page 51 and Owusu v. Minister of Citizenship and Immigration, A-1483-92 (F.C.T.D.).
[17] Consequently, Exhibits A, B, C, D, F and G, appended to the affidavit dated November 18, 2002, are inadmissible and must be withdrawn from the record and returned to the applicant.
2. Did the Appeal Division err in finding that the applicant was not legally divorced from his first wife when he entered into marriage with his second wife?
[18] With respect to the second issue, whether the Appeal Division erred in concluding that the applicant was not legally divorced from his first wife when he entered into marriage with his second wife, I examined the evidence filed before the Appeal Division very carefully and also read the transcript of the proceedings.
[19] It appears that the panel examined the various documents carefully and also considered the documentary evidence. The panel considered that the applicant and his first wife were, in fact, properly married by custom in 1984 and divorced in 1992, even though documentary evidence is incomplete on one particular point.
[20] In fact, the religious divorce alleged by the applicant and confirmed by certain documents, is not evidence in and of itself that this religious divorce is recognized under the laws of Chad.
[21] It is true that there is evidence that the civil authorities recognized the divorce, and this recognition is apparent in the judgment of divorce granted by the courts in 2001.
[22] It is unfortunate that the evidence to the effect that a religious divorce under Koranic law is recognized under the laws of Chad was not advanced in a satisfactory manner before the panel. Under the circumstances, the only question to be resolved is whether it was unreasonable for the panel to find that a divorce recognized by the law of Chad had indeed ended the first marriage.
[23] Unfortunately, the applicant failed to satisfy me that the findings of fact of the tribunal were so unreasonable as to warrant the intervention of this Court.
[24] Therefore, the application cannot be allowed.
ORDER
THE COURT ORDERS:
[1] The application for judicial review is dismissed;
[2] The parties did not submit a serious question for certification.
"Pierre Blais"
Judge
Certified True Translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5034-02
STYLE OF CAUSE: Abdelaziz Koulamallah v. MCI
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 3, 2003
REASONS FOR ORDER BY: The Honorable Mr. Justice Blais
DATED: September 8, 2003
APPEARANCES:
Abdelaziz Koulamallah THE APPLICANT acting on his own behalf
Marie Crowley FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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