Date: 20100211
Docket: IMM-4154-09
Citation: 2010 FC 144
Ottawa, Ontario, February 11,
2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
FAHAMIDA
BHUIYAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Fahamida
Bhuiyan is a young Montrealer of Bangladeshi origin. In 2006, she married Nazim
Uddin Mir, a citizen of Bangladesh, in Bangladesh.
[2]
She
applied to sponsor him as a permanent resident. The visa officer denied the
application on the grounds that the marriage was “not genuine and was entered
into primarily for the purpose of acquiring any status or privilege under the
Act.” Section 4 of the Immigration and Refugee Protection Regulations
provides that such a person shall not be considered a spouse.
[3]
Fahamida
appealed to the Immigration Appeal Division of the Immigration and Refugee
Board. Her appeal was dismissed. This is the judicial review of that decision.
BACKGROUND
[4]
The
marriage was arranged by both families who go back many, many years together.
Indeed, Fahamida’s sister is married to Nazim’s brother.
[5]
Fahamida
has a learning disability. However, based on a report from a psychologist, the
Panel accepted that she was capable of love, capable of marriage and entered
into the marriage in good faith.
[6]
However,
the Panel determined the marriage was not genuine because Fahamida’s parents
wanted someone who would support her for the rest of her life and that Nazim
was chosen as a caretaker in a mutually beneficial arrangement which was agreed
upon by the respective families. Such a caretaker arrangement is not the basis
of a genuine marriage. Furthermore, Nazim’s motives were suspect and there were
said to be credibility issues. Nazim was twice interviewed by telephone by the
Panel. Unfortunately, the tape of the first hearing has been lost.
[7]
Both
parties were of the view that the Court could, nevertheless, reach a decision
on the merits of the judicial review, the applicant taking the position that
the decision was unreasonable and the Minister submitting that the decision was
well within the range of reasonable outcomes as set out in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190.
[8]
I
expressed grave concerns at the hearing as to whether I was in a position to
fairly assess the reasonableness of the decision in light of the fact that a
transcript of the first hearing is not available, and given that Nazim was
found not to be credible.
[9]
Nazim
was also interviewed at the second hearing for which a transcript is available.
However, that interview is limited to the significance of a Valentine’s Day
card he, with very limited English, sent to Fahamida, signing it “your lover.”
[10]
The
Panel was somewhat concerned that the marriage was not consummated immediately,
and seems to imply that signing a card “your lover” was an attempt to move up
the consummation date. Nazim’s explanation was perfectly sensible. “I am her
husband, she is my wife I am her lover.” It does not necessarily follow that
their marriage had been consummated, or that delays were indicative of a
caretaker relationship. Certainly, one cannot reasonably infer from that card,
taken alone, that Nazim is not credible.
[11]
It
may well be that the transcript of the first hearing would amply demonstrate
why the Panel considered that Nazim was not credible, but this brings natural
justice into issue, front row and centre.
[12]
As
stated by Madam Justice L’Heureux-Dubé, on behalf of the Supreme Court, in Canadian
Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R.
793, at para. 81:
In
the absence of a statutory right to a recording, courts must determine whether
the record before it allows it to properly dispose of the application for
appeal or review. If so, the absence of a transcript will not violate the rules
of natural justice. Where the statute does mandate a recording, however, natural
justice may require a transcript. As such a recording need not be perfect to
ensure the fairness of the proceedings, defects or gaps in the transcript must
be shown to raise a “serious possibility” of the denial of a ground of appeal
or review before a new hearing will be ordered. These principles ensure the
fairness of the administrative decision-making process while recognizing the
need for flexibility in applying these concepts in the administrative
context.
[13]
Neither
the Immigration and Refugee Protection Act nor the Regulations require a
recording of a hearing before the Immigration Appeal Division, or that a
transcript be prepared. The authorities were comprehensibly reviewed very
recently by Mr. Justice Mainville in Canada (Minister of
Citizenship and Immigration) v. Liang, 2009 FC 955.
[14]
In
the case at bar, absent a transcript, there is not sufficient information for
me to reach a decision and, therefore, a new hearing is required.
[15]
Indeed,
what is in the record suggests that the Panel examined the record with
excessive zeal, and with a modern view, which may not sit well with older views
of marriage, views which were current in this country not very long ago.
[16]
There
is nothing wrong with an arranged marriage, if the spouses agree. Until the
last fifty years or so, in Canadian urban centres, the ideal marriage was seen
to be one in which the husband was the bread-winner and the wife the home-maker.
Perhaps the Bhuiyans are followers of that school of thought. Indeed, would not
parents want their daughter to marry someone who would take care of her?
Consider the following provisions about the duties of husband and wife taken
from the Quebec Civil Code: “[spouses] owe each other respect, fidelity,
succour and assistance” (article 392); they “contribute towards the expenses of the
marriage in proportion to their respective means. The spouses may make their
respective contributions by their activities within the home” (article 369). In any
event, Fahamida is presently employed, which suggests she would be able to
financially contribute to household expenses.
[17]
The
Panel made much of the fact that the wedding in Bangladesh, although
admittedly legal, was not as full-blown a Muslim ceremony as it might have
been. I fail to understand why an elaborate marriage ceremony would indicate
good faith on Nazim’s part, while a simpler ceremony would not, especially
since Fahamida’s step-father is Hindu.
[18]
I
am also concerned with the emphasis the Panel placed on the delay in the
consummation of the marriage, a marriage between two people who grew up half a
world a part. It does not follow that this is a caretaker relationship,
especially since there are indications from husband and wife that the marriage
has been consummated, perhaps to the initial surprise of Fahamida’s parents.
What went on behind closed doors is none of Fahamida’s parents’ business, and
certainly their understanding of it cannot be preferred over the testimony of
the participants. Again, however, we do not have the transcript of what Nazim
said on the subject.
[19]
For
these reasons, judicial review shall be granted.
ORDER
FOR REASONS
GIVEN;
THIS COURT
ORDERS that:
1. The
application for judicial review is granted.
2. The decision
rendered by the Panel of the Immigration Appeal Division of the Immigration and
Refugee Board is set aside.
3. The matter is
referred back for rehearing by a differently constituted Panel.
“Sean Harrington”
Email this Content