Date: 20121001
Docket:
IMM-1757-12
Citation:
2012 FC 1135
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 1, 2012
PRESENT:
The Honourable Mr. Justice Simon Noël
BETWEEN:
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KISSIMA CHEIKHNA
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP
AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision by the Immigration Appeal Division (the “IAD”) of the Immigration
and Refugee Board, dated January 31, 2012, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA”). The IAD dismissed the
applicant’s appeal from the refusal of the application for permanent residence
made by Laalah Yacouba Tandia (“Ms. Tandia”) as a member of the family class on
the ground that the wedding was not solemnized in accordance with the requirements
of Mauritanian law.
I. Facts
[2]
The
applicant has been a permanent resident in Canada since April 20, 2005, and is
originally from the Islamic Republic of Mauritania, like Ms. Tandia. The
applicant met Ms. Tandia on December 6, 2006 in Mauritania and apparently asked
her to marry him on December 25, 2006. The couple was married by proxy on
October 17, 2007 in Kaédi, Mauritania, while Mr. Cheikhna was living in Canada.
[3]
The
applicant made an application to sponsor Ms Tandia. On March 12, 2009, an
immigration officer at the Canadian Embassy in Abidjan informed Ms. Tandia by
letter that her application for permanent residence had been refused. The
reason invoked was that the relationship between Mr. Cheikhna and Ms. Tandia
was not genuine and had been entered into primarily for the purpose of
acquiring status. The applicant appealed to the IAD.
[4]
During
the hearing, the Minister filed a motion to add a second ground of refusal,
namely, that the marriage did not comply with Mauritanian law. The IAD
proceeded on the scheduled date, but granted additional time for the appellant to
complete his documentary evidence. The appeal was dismissed in a decision
rendered on January 31, 2012.
II. Decision
under review
[5]
The
IAD dismissed the applicant’s appeal on the sole ground that couple’s marriage
failed to meet the requirements of Mauritanian law, which is contrary to
section 2 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (“IRPR”).
Having determined that the marriage was not valid under Mauritanian law, the IAD
found that it was not necessary to deal with the second ground raised by the
Minister, namely, the genuineness of the relationship between the spouses.
[6]
First,
the IAD was not satisfied, based on the evidence adduced, that marriage by
proxy is authorized under Mauritanian law. The IAD, relying on Quao v Canada
(Minister of Citizenship and Immigration), 2000 CarswellNat
1682 at paragraph 31, 2000 CanLII 15954 (FC) (Quao), noted that
the onus is on the appellant to show, on a balance of probabilities, that this
form of celebrating a marriage is valid, because foreign law is not within the
general knowledge of the panel.
[7]
Second,
the IAD found that even if the marriage by proxy was legal, the appellant had
not discharged his burden of proving that the marriage had in fact been solemnized
in that manner. The appellant did not submit a proxy document in his evidence.
Neither the excerpt from the registry of marriage certificates nor the document
entitled “Acte de marriage” make any reference to the presence of a proxy
representing Mr. Cheikhna at the time of the marriage or to a sworn statement
by such a proxy. The IAD noted that appearance of authenticity of a document issued
by a foreign state creates only a presumption of validity, which may be
rebutted.
III. Applicant’s
submissions
[8]
The
applicant argues that the IAD drew an unreasonable conclusion when it determined
that the applicant had not discharged his burden of proof and had failed to
demonstrate that marriage by proxy was legal in Mauritania and that the marriage
had been solemnized according to the requirements of Mauritanian law.
[9]
The
applicant submits that the IAD erred by initially determining that the marriage
certificate did not contain all of the elements required by the Personal Status
Code and by subsequently finding that, if there was a failure to comply,
this would render the marriage invalid under Article 49 of the Personal Status Code,
because the marriage certificate is not a constituent element of the marriage.
IV. Respondent's
submissions
[10]
The
respondent argues that the IAD made a reasonable finding by determining that
the applicant had failed to demonstrate that his marriage was valid under
Mauritanian law. The documentary evidence adduced by the applicant does not
specifically deal with the issue of whether marriage by proxy is valid under
Mauritanian law. The applicant presented no documentary evidence or clear
expertise with respect to the legality of marriage by proxy under Mauritanian
law, nor did he submit any proxy documents.
[11]
Furthermore,
the IAD validly determined that the marriage was void, given that article 49 of
the Personal Status Code stipulates that the absence of one of the constituent
elements of a marriage, in this case the presence of one of the spouses,
renders it void.
V. Issue
[12]
Did
the IAD err in determining that the applicant’s marriage by proxy failed to
meet the requirements of Mauritanian law, which is contrary to section 2 of the
IRPR?
VI. Standard
of review
[13]
The
issue is reviewable on a reasonableness standard, given that it is a question
of mixed fact and law (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraphs
164-166, [2008] 1 S.C.R. 190 (Dunsmuir)).
VII. Analysis
[14]
The
panel’s decision is reasonable and no intervention from this Court is warranted.
[15]
The
applicant had the onus of demonstrating to the IAD, on a balance of probabilities,
that (1) marriage by proxy is valid under Mauritanian law (Quao, supra,
at paragraph 31); and (2) that a marriage by proxy had been validly solemnized.
[16]
The
IAD validly concluded, in light of the relevant articles of the Personal Status
Code and the documentary evidence adduced by the applicant regarding the law
and customs of Mauritania, that nothing in the evidence gave any clear
indication as to the legality of marriage by proxy in Mauritania.
[17]
The
IAD further concluded that the solemnization of a marriage by proxy had not
been proven in fact and that the marriage was therefore void. The panel relied
on the lack of any reference to a proxy having represented the applicant in
the “Acte de marriage” or in the excerpt from the registry of marriage
certificates. Furthermore, the applicant did not submit a written proxy.
[18]
The
confusion noted by the IAD in the “Acte de marriage” with respect to the role
of Tidiane Mohamed Diagana, whose name appears as both witness and proxy at the
time of the marriage, explains why the IAD assigned no probative value to this
document and why it made an adverse finding with regard to the applicant
because the certificate failed to meet the requirements of article 76 of the
Personal Status Code.
[19]
This
Court has previously found that the absence of a proxy document as well as the shortcomings
in a marriage certificate are valid grounds on which a panel may base its
decision not to assign any probative value to a marriage certificate (Ipala
v Canada (Minister of Citizenship and Immigration) 2005 FC
472 at paragraph 29, 2005 CarswellNat 898).
[20]
As to the applicant’s argument that irregularities in the marriage
certificate should not render the marriage void, the IAD’s finding was in fact
that it was the lack of evidence of the solemnization of the marriage by proxy
that rendered the marriage void and not the shortcomings in the marriage
certificate, which was just one part of the evidence considered by the IAD.
[21]
Lastly,
contrary to what the applicant claims, one does not have to find problems with
an official document issued by a foreign state, such as a marriage certificate,
to question its validity, because as the IAD noted, such documents benefit only
from a presumption of validity (Ramalingam v Canada (Minister of Citizenship and Immigration),
1998 CanLII 7241 (FC) at paragraph 5, 1998 CarswellNat 35).
[22]
The
IAD’s determination that the applicant’s marriage is void under Mauritanian
law, and therefore under Canadian law, falls within a range of possible
outcomes “which are defensible in respect of the facts and law” (Dunsmuir,
supra, at paragraph 47); it is therefore reasonable.
[23]
The
parties, although given the opportunity to do so, did not submit any questions
for certification.
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