Date: 20090113
Docket: IMM-1000-08
Citation: 2009 FC 14
Ottawa, Ontario, this 13th day of
January 2009
Present: The Honourable Mr. Justice
Pinard
BETWEEN:
ABDUL
HANNAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), of a decision
rendered by the Immigration and Refugee Board, Immigration Appeal Division (the
“IAD”), dated February 11, 2008.
[2]
Abdul
Hannan (the “applicant”) is a 40-year-old citizen of Bangladesh. In January
2002, he landed in Canada as a permanent resident. At the time, he
declared himself to be single. During the hearing before the IAD member, he
stated that he came to Canada as a dependant of his mother, who was
sponsored by his sister.
[3]
On
February 11, 2002, about one month after his arrival in Canada, the applicant’s
daughter, Jenifa Hannan, was born, the result of an alleged secret relationship
with a woman in Bangladesh. The applicant claims that he married the
child’s mother, Rizma Begum, on October 11, 2002. He did not declare the child
to Canadian immigration authorities until he sponsored her mother on February
10, 2006, with her as an accompanying dependant, under the “family class”,
pursuant to subsection 13(1) of the Act. The applicant submitted a Marriage
Certificate and Nikah Nama obtained in Bangladesh to the
Canadian High Commission in order to prove their married status. At the same
time, Ms. Begum applied for permanent residence status, pursuant to subsection
12(1) of the Act.
[4]
On
September 19, 2006 the Immigration Officer responsible for the file sent a
letter to Ms. Begum, with the following warning:
Our investigator in Dhaka visited the Kazi Office for Ward No. 11
and met with the official there. The officer stated that the Nikah Nama has not
been registered with any of the Sylhet City Corporation’s Kazi offices. They
concluded that your Nikah Nama is fraudulent.
[5]
In
a letter dated October 3, 2006, Ms. Begum responded with a letter stating:
As you have mentioned in the letter that
your investigator visited the Kazi office responsible for Ward No. 11 of Sylhet
City Corporation. Here, I would like to clarify the fact that Ward No. 11 is
the old number of Sylher [sic] Municipality. Ward No. 11 of Sylhet Municipality has now turned
into Ward No. 23 & 24 of Sylhet City Corporation. Therefore, it is obvious
that there would be no proof of registration of my Nikah Nama in the Kazi
office responsible for Ward No. 11. In my Marriage Certificate, which I have
also submitted before you, it is clearly mentioned on the top of the
certificate.
My Nikah Nama which I have submitted is
not a fraudulent document. It is hundred percent [sic] genuine and
authentic.
Therefore, before making any final
decision on my file, I would ask you to please verify the authenticity of my
Nikah Nama with the Kazi office responsible for Ward No. 23 & 24 of Sylhet
City Corporation (old Ward No. 11 of Sylhet Municipality).
[6]
This
was followed up with two further letters by Ms. Begum, received by the High
Commission’s Immigration Department on October 12 and 20, 2006, respectively,
that sought to further explain the source of the controversy, and provided the
address of the Kazi in Bangladesh who Ms. Begum claimed
had in fact registered the marriage.
[7]
The
sponsorship application was denied. In a refusal letter dated October 12, 2006,
the Immigration Officer informed Ms. Begum of his assessment that the Nikah
Nama submitted in support of her application was fraudulent; accordingly,
she did not meet the definition of a member of the family class, pursuant to
paragraph 117(1)(a) of the Immigration and Refugee Protection
Regulations, SOR/2002-227. In a second
letter, also dated October 12, the Immigration Program Manager explained that
Ms. Begum’s application could not be approved because she was inadmissible
under paragraph 40(1)(a) of the Act due to misrepresentation,
re-iterating the findings of the investigators, and adding that “Ward 11 did
not exist in 2002 when the Nikah Nama was purportedly issued”. Consequently, Ms.
Begum’s allegation in her letter that Ward No. 11 under the old system had been
re-numbered as Wards 23 and 24 was deemed “not credible”.
[8]
The
refusal was appealed, pursuant to subsection 63(1) of the Act. A hearing before
the IAD was held on November 8, 2007. On February 11, 2008, the IAD rendered
its decision, dismissing the appeal.
[9]
The applicant states the
heart of the matter plainly at paragraph 3 of his Memorandum:
.
. . the entire issue in this case is whether the marriage certificate and Nikah
Nama are valid and whether they were registered in the right place;
[10]
This
is a question of fact, and the IAD is therefore entitled to a high degree of
deference (Dunsmuir v.
New Brunswick,
[2008] 1 S.C.R. 190, at paragraph 51; Bielecki v. Canada
(Minister of Citizenship and Immigration), [2008] F.C.J. No. 524, 2008 FC 442, at paragraph
12; Canada (Minister of
Citizenship and Immigration) v. Bryan, [2006]
F.C.J. No. 190, 2006 FC 146, at paragraph 43). Indeed, the
respondent outlines four reasons the IAD could properly conclude that the
documents in questions were inauthentic, essentially summarizing the concerns
cited in the decision itself:
- Section 1 of the Nikah Nama does not
mention the Ward number, and the applicant has provided no explanation for
this absence.
- The fact that the vakil who represented the
bride also solemnized the marriage is anomalous, and could not be
explained by the applicant.
- There were many discrepancies between the
marriage certificate and the registry document bearing the number 2/2002.
- Ward No. 11 did not exist in Sylhet Pourashova
in 2002, the year of the alleged marriage.
[11]
In
my view, none of these reasons stands up to even a somewhat probing
examination. First, Ms. Begum, in her letter received October 12, 2006 by the Immigration
Section of the High Commission of Canada in Singapore, points out correctly that, despite its
absence from the Nikah Nama, the Ward number is plainly visible in the
Marriage Certificate. In any event, no one has argued that such a discrepancy,
on its own, provides a sufficient ground for a finding of invalidity.
[12]
Second,
no evidence has been adduced by either party about the role of a vakil in a
Muslim marriage ceremony; I therefore have no basis for assessing the claim
that such a dual role is suspect, and no reason to so find.
[13]
Third,
the claimed discrepancies (i.e., between the Nikah Nama located
by the investigators in what is now Ward No. 11 and the Nikah Nama
submitted by the applicant) have, in fact, been explained, in so far as the
applicant and Ms. Begum have repeatedly asserted that the investigation was
undertaken in the wrong Ward. It does not seem at all implausible to me that
such discrepancies would result from a search of the wrong registry, if such
was the case. In effect, this point encapsulates the basic position of the
applicant: the investigators, on whose findings the Immigration Officer and the
IAD rest their conclusions, investigated the wrong place by going to the present
Ward No.11 (formerly Ward No. 2), rather than to what was Ward No. 11 in
2002 (and has since been re-named Wards 23 and 24). This apparent error was
pointed out by Ms. Begum in her letters of October 2006.
[14]
Fourth
and finally, the letter from the Bengali lawyer and its appendices, provided to
the IAD before the hearing, are uncontradicted evidence that Ward No. 11 was in
fact in existence at the time of the alleged marriage – which refutes one of
the principal bases for rejecting Ms. Begum’s application, and for finding
her claims incredible. In so far as the statement of the Kazi officer (in what
is now Ward No. 11) to the investigators regarding the number of Wards in
Sylhet Pourashova has been put in doubt, so too, I would think, is his blanket
assertion that the marriage is not registered “in any Ward” (my
emphasis) in the Sylhet City Corporation.
[15]
At
paragraph 22 of its decision, the IAD writes:
…
the existence of Ward 11 alone is insufficient to rebut the investigators’
findings, in effect, the appellant did not submit any explanation with regards
to the discrepancies related to the number on the certificate and the page of
the registrar. The exhibits A‑1 to A‑6 were not submitted to
the embassy by the appellant for verification.
[16]
For
the reasons stated above, I cannot agree with this assessment.
[17]
As
for the finding of inadmissibility based on misrepresentation, it clearly
depends on a prior finding of the invalidity of the supporting documents.
Because, in my view, the IAD’s decision regarding the validity of the Marriage
Certificate and Nikah Nama is unreasonable, I need not consider the
question of misrepresentation.
[18]
For
all the above reasons, the application for judicial review is allowed and the
matter is sent back to the IAD for re-determination by a differently
constituted panel.
JUDGMENT
The application for judicial
review of the decision rendered by the Immigration Appeal Division (the “IAD”)
of the Immigration and Refugee Board on February 11, 2008 is allowed. The
matter is hereby sent back to a differently constituted panel of the IAD for
re-determination.
“Yvon
Pinard”
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