Date: 20110708
Docket: IMM-6148-10
Citation: 2011 FC 858
Ottawa, Ontario, July 8, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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ASMA ELAHI
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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 pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) of the decision made
on September 22, 2010, at the Immigration Appeal Division (“IAD”) of the
Immigration and Refugee Board in Toronto, Ontario, rejecting the applicant’s
appeal from the decision of a visa officer not to issue a permanent resident
visa to her spouse as a Member of a Family Class.
BACKGROUND
[2]
At
the time of the appeal hearing, the applicant was a 29-year old female, born in
Pakistan. She landed
in Canada in May 2006
as a dependent on her father’s application. Her father was sponsored by the
applicant’s brother.
[3]
The
applicant’s spouse was born in May 1979 and is two years older than she. He is
a citizen of Pakistan. He was
granted a visitor’s visa on humanitarian and compassionate grounds in late 2004
or early 2005. The visa expired in March 2005. It was extended from April 2005 until
December 31, 2005. It was extended a second time from December 31, 2005 until
it finally expired on May 30, 2006.
[4]
The
couple met through an online dating website called shaadi.com. Their profiles
were placed online by their respective family members. The two were married in Canada in March
2007. The applicant submitted a sponsorship application for her spouse in July
2007 that was refused by way of letter on June 3, 2008. The visa officer was
not satisfied that the marriage was genuine. The applicant appealed to the IAD.
The IAD concluded that the applicant’s marriage to her spouse was not bona
fide and was entered into primarily for the purpose of her husband gaining
permanent resident status under IRPA. This is a judicial review of that decision.
DECISION UNDER REVIEW
[5]
The
IAD found the applicant did not prove, on a balance of probabilities, that the
marriage is genuine and was not entered into for the purpose of the applicant
acquiring status or privilege under the IRPA. In particular, the IAD took issue
with the fact that the applicant was not consulted or involved in the choice of
her husband; that the marriage negotiations were hastily held and that the
applicant lacked input in the arrangements. It found the dates of first contact
and meeting of each other confusing and that the telephone receipts submitted
as evidence reflected a number of unidentified incoming calls.
[6]
The
IAD also held that the cards sent to the applicant by her husband provided
little evidence of a genuine marriage; that there was a lack of supporting
documentation to show that the applicant and her husband lived together when
they returned to Pakistan; that the applicant lived mainly at her brother’s
home upon her return to Canada in 2009; and that the husband was evasive on
several occasions, in particular with respect to his brother’s whereabouts or
status in Canada. Finally, the IAD found that the husband wished to remain in Canada with his
immediate family and had made previous attempts to gain status here, testifying
that his desire to stay was to comply with his father’s wishes.
ISSUES
[7]
This
application raises the following issues:
- Did the IAD err by
ignoring the cultural context of the arranged marriage?
- Did the IAD err in
assessing the applicant’s marriage?
- Did the IAD err in
failing to consider the totality of evidence?
ANALYSIS
Standard of review
[8]
As
an expert tribunal, decisions by the IAD are owed deference by this Court and
can only be set aside if the decision is based “on an erroneous finding of fact”
made in a “perverse or capricious manner or without regard for the material
before it”, pursuant to paragraph 18.1(4) (d) of the Federal Courts Act, R.S.C., 1985, c.
F-7:
Barm v. Canada (Minister of Citizenship and Immigration), 2008 FC 893 at
para. 12; Rosa v. Canada (Minister of
Citizenship and Immigration), 2007 FC 117 at para. 23. The
determination as to whether a marriage is genuine is a fact-based inquiry to be
reviewed on a standard of reasonableness: Rosa v. Canada (Minister of
Citizenship and Immigration), 2007 FC 117 at para. 23; Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para. 53.
Did the IAD err by
ignoring the cultural context of the arranged marriage?
[9]
It
is well-established that when assessing genuineness of arranged marriages, in
particular, the IAD must be careful not to apply Western conceptions of
marriage to the case before it. Rather, the bona fides should be
evaluated within the cultural context in which it took place: Gill v. Canada (Minister of
Citizenship and Immigration), 2010 FC 122, 362 F.T.R. 281 at para. 7; Abebe
v. Canada (Minister of
Citizenship and Immigration), 2011 FC 341 at paras. 34-36. This is
because, “By its very nature, an arranged marriage, when viewed through a North
American cultural lens, will appear non-genuine.”: Gill, above, at para.
7.
[10]
Although
the IAD acknowledges that marriage means different things for different
cultures, its understanding of this notion is demonstrably less than profound:
I certainly acknowledge the institution of
marriage varies from culture to culture and includes genuine arranged
marriages. However, I do not find the arranged marriage between the appellant
and the applicant to be a genuine marriage. I make this finding noting the
appellant’s testimony she was never consulted nor provided any input into her
marriage negotiations. Nor did the appellant even speak with or meet the
applicant before her family accepted the proposal on her behalf. Even
acknowledging the appellant was out of the country; at the very least I find it
would have been a reasonable expectation to have initiated some telephone calls
to further assess compatibility, or alternatively wait for her return so she
could meet the applicant face to face before her family accepted his proposal.
[11]
As
the applicant rightly notes, although it may be a reasonable expectation in
Western society or North American culture to have initiated telephone calls to
assess compatibility, this was not part of the custom of arranged marriages for
Muslim women from Pakistan. The applicant testified orally and submitted
in her sworn affidavit that she consented to the marriage and was aware that
her brother had posted her profile on an online website to find her a suitable
husband. Arranging a marriage for the applicant was a family affair; a process
in which both families were heavily involved. The IAD appears not to have
appreciated this fact, evidenced by its conclusion that it was unreasonable
that some sort of personal contact between the applicant and her spouse had not
been initiated in order to assess compatibility, and that the absence of this
latter thus amounted to a lack of genuineness.
Did the IAD err in
assessing the applicant’s marriage?
[12]
It should be recalled that section 4 of the Immigration and Refugee
Protection Regulations, SOR/2002-227 was amended
after the IAD rendered its decision in this case. Under the former version of
the regulations, a marriage was considered to be of bad faith if it was found
to be entered into primarily for the purpose of acquiring any status or
privilege under the IRPA and was not genuine. The test was conjunctive: Canada (Minister
of Citizenship and Immigration) v. Tirer, 2010 FC 414 at
para. 12. Under the current, amended version, the test is disjunctive
meaning that a marriage could be found to be of bad faith if entered into
primarily for the purpose of acquiring any status or privilege under the IRPA or
is held to be not genuine: Wiesenhahan v. Canada (Minister of Citizenship
and Immigration), 2011 FC 656 at para. 3.
[13]
In Khan
v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1490, 59 Imm. L.R. (3d) 251 at
paragraphs 4-5, Justice Roger Hughes, citing Donkor v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1089, at paragraphs 18-19, reiterated
the two-prong test to be used in interpreting section 4 of the then-in-force
regulations. As noted at paragraph 4 in Khan:
- The genuineness of relationship must be considered in
the present tense such that a relationship that may not have been
"genuine" at the outset may have become genuine; and
- Consideration must be given as to whether the
relationship entered into primarily for the purpose of acquiring any
status or privilege under the Act.
[14]
At
paragraph 5 Justice Hughes went on to state that “Both branches of the test
must be met before a person cannot be considered a spouse or partner” and “if
the Applicant succeeds … on only one of these two branches of the test, then it
is open to the Court to find that a reviewable error has occurred”.
[15]
In
the case at bar, the applicant submits that the IAD placed undue focus on her
spouse’s immigration history which may pertain, on a limited basis, to the
second prong of the test. There is merit to this argument. Although the
applicant’s spouse did have an immigration history which included repeated
attempts to stay in Canada, the couple did not try
to hide this in the application. The applicant’s spouse’s history can be
attributed largely to the fact that his immediate family was already here. The
record indicates that in late 2004 or early 2005, the applicant’s spouse and
his brother were granted compassionate visitor visas to allow them to stay with
their terminally ill mother. The initial visitor visa expired in March 2005. Their
mother passed away in May 2005 and the spouse’s visitor’s visa was extended
from April 2005 until December 31, 2005. It was extended for a second time from
December 31, 2005 until it expired on May 30, 2006, as his father required his
personal care assistance following knee replacement surgery in December 2005. The
spouses’ request for a third extension of his visitor visa was refused in July
2006 but he did not depart from Canada until May 9, 2008. He returned to Pakistan only because he had his
visa interview.
[16]
In
May 2008, the applicant’s spouse even noted at his visa post interview that
remaining in Canada was part of the reason
for his marriage to the applicant.
[17]
The
applicant herself appears to have both recognized this and takes no issue with
it, as is indicated from an excerpt of the hearing transcript in the Certified
Tribunal Record at p. 304:
Q: Why did he start looking [for a spouse] in Canada?
A: His father wanted to be in Canada because he got relatives here also, and his mother’s grave
is also here.
Q: Okay. What relatives does he have in Canada?
A: His father, and father’s sister.
Q: Who else?
A: His sister and his mother was passed away.
Q:
Okay, So - - now did he - - Okay, I’m going to ask you this, would he have
married you if you were living in Pakistan and were a Pakistani citizen with no
connection to Canada?
A:
Both of our families were looking for that marriage relationship in Canada so
there is no question of getting married in Pakistan. (Emphasis added).
[18]
Reading
this exchange together with copies of their online dating profiles, it becomes
clear that they were each looking for similar things out of a relationship:
someone with a similar cultural, religious and linguistic background, as well
as someone who would be willing and able to start a life in Canada. It does not follow
that just because the applicant’s spouse was looking to establish himself in Canada, the couple’s marriage
was not genuine. The IAD thus erred in using the spouse’s immigration history
as a basis for finding a lack of bona fides of the marriage. In so
doing, it failed to properly appreciate the distinction between what may
traditionally constitute a “genuine marriage” in Canada and what may
constitute a genuine marriage in other cultures.
[19]
The
genuineness of this couple’s marriage is further reinforced by the photographs
of their wedding reception showing family members sitting together, eating
together and celebrating together. There are also photographs on record of
their time together in Pakistan, as well as their
testimony that they lived together in Canada and in Pakistan, evidence that they
communicate for one hour every day and their shared desire to have children and
live together in the future.
Did the IAD err in failing to consider the
totality of evidence?
[20]
Despite
the fact that the IAD clearly considered the majority of evidence before it,
the applicant is correct to point to pertinent evidence that was not mentioned
in the decision under review. These pieces of evidence include: the sworn
testimony that the couple was living together in Canada and in Pakistan, the
reasons why the family members initially felt that the applicant and her
husband would be compatible, namely age, education, religion, language, family
background and geography, and the consistent testimony of the applicant and her
spouse’s knowledge of each other’s educational background, together with
evidence of communication, photographs and passport stamps showing the couple
returned to Pakistan together. This evidence supports the applicant’s position
and could be considered to be contradictory evidence. As such, it is fair for
the Court to conclude that it was overlooked or ignored: Prekaj v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1047, 85 Imm. L.R. (3d) 124 at
para. 29; Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) [1998] F.C.J. No. 1425 (QL), 157 F.T.R.
35.
[21]
For
the above reasons, this application will be allowed and remitted to a differently
constituted panel of the IAD.
[22]
In
oral argument, counsel for the applicant requested that if the matter were
returned to the IAD my Reasons for Judgment and Judgment include a direction
that the IAD apply the conjunctive test as it was before the September 30, 2010
amendments of the Regulations. Fairness, the applicant argues, demands
that the law be applied as it was when the original decision was made. The
respondent noted that if returned, the hearing before the IAD would be de
novo and argued that the new, disjunctive test would apply as required under
the current Regulations. There are no transitional provisions in the
regulations.
[23]
I
agree with the applicant. In coming to this conclusion I have taken into
consideration section 43 of the Interpretation Act, R.S.C. 1985, c. I-21
which indicates that the repealing of a provision in whole or in part should
not have an effect on any rights or privileges once they have begun to accrue:
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43. Where an enactment is repealed in whole or in part, the
repeal does not
(a) revive
any enactment or anything not in force or existing at the time when the
repeal takes effect,
(b) affect
the previous operation of the enactment so repealed or anything duly done or
suffered thereunder,
(c) affect
any right, privilege, obligation or liability acquired, accrued, accruing or
incurred under the enactment so repealed,
(d) affect
any offence committed against or contravention of the provisions of the
enactment so repealed, or any punishment, penalty or forfeiture incurred
under the enactment so repealed, or
(e) affect
any investigation, legal proceeding or remedy in respect of any right,
privilege, obligation or liability referred to in paragraph (c) or in
respect of any punishment, penalty or forfeiture referred to in paragraph (d),
and an investigation, legal proceeding or remedy as described in paragraph (e)
may be instituted, continued or enforced, and the punishment, penalty or
forfeiture may be imposed as if the enactment had not been so repealed.
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43. L’abrogation,
en tout ou en partie, n’a pas pour conséquence :
a) de
rétablir des textes ou autres règles de droit non en vigueur lors de sa prise
d’effet;
b) de porter
atteinte à l’application antérieure du texte abrogé ou aux mesures
régulièrement prises sous son régime;
c) de porter
atteinte aux droits ou avantages acquis, aux obligations contractées ou aux responsabilités
encourues sous le régime du texte abrogé;
d) d’empêcher
la poursuite des infractions au texte abrogé ou l’application des sanctions —
peines, pénalités ou confiscations — encourues aux termes de celui-ci;
e) d’influer
sur les enquêtes, procédures judiciaires ou recours relatifs aux droits,
obligations, avantages, responsabilités ou sanctions mentionnés aux alinéas c)
et d). Les enquêtes, procédures ou recours visés à l’alinéa e)
peuvent être engagés et se poursuivre, et les sanctions infligées, comme si
le texte n’avait pas été abrogé.
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[24]
I
have also considered the cases of McDoom v. Canada (Minister of Manpower
and Immigration),
[1978] 1 F.C. 323; [1977] F.C.J. No. 148 (QL) and Vijayasegar v. Canada (Minister of
Citizenship and Immigration), 3 Imm. L.R. (3d) 67, [1999] I.A.D.D. No.
2170 which stand for the principle that a person cannot be prejudiced by
giving retroactive effect to new and additional requirements in a regulation. In
my view, that would be the effect of sending this matter back for
reconsideration if the new disjunctive test is applied.
[25]
The
applicant submitted her application when the old Regulations were in
force. She was entitled to have the bona fides of her marriage assessed
in a way that took into account the cultural differences between Western
relationships and those from other parts of the world. To apply the new
regulations and the new, stricter, test at the de novo hearing would be
to deprive this couple of the benefit of that entitlement.
[26]
The
Federal Court of Appeal made it clear in Rafuse v. Canada (Pension
Appeals Board), 2002 FCA 31, 286 N.R. 385, at paras. 13-14, that, upon
sending a matter back for redetermination, this Court should not, except in the
clearance of circumstances, direct the tribunal to reach a specific decision.
See: Xie
v. Canada (Minister of Employment
and Immigration)
(1994), 75
F.T.R. 125, 46 A.C.W.S. (3d) 708. In
acknowledging the limits on my ability to exercise my discretion in the applicant’s
favour, I do consider it within the ambit of the Court’s powers to direct the IAD
to apply the law as it read when the applicant initiated her appeal and it was
first determined by the IAD. Not to do so would render the remedy which the applicant
has obtained on this application a nullity and deny her natural justice.
[27]
No
questions were proposed for certification and none will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1. this
application for judicial review is granted and the matter is remitted to a
differently constituted panel of the Immigration Appeal Division for
reconsideration;
2. the new panel
will apply the regulation as it was written prior to September 20, 2010;
3. no questions
are certified.
“Richard
G. Mosley”
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