Date: 20080502
Docket: IMM-4243-07
Citation: 2008 FC 564
Ottawa, Ontario, May 2, 2008
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
AGHA SHABBAR MUSTAFA
a.k.a.
SHABBAR MUSTAFA AGHA
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of visa officer Syed Abdul
Hameed at the Canadian High Commission in Islamabad, Pakistan dated August
16, 2007 refusing the applicant’s application for permanent residence as an
overseas dependant of an in-Canada applicant for permanent residence. This
case involves the genuineness of an arranged marriage where the couple has
never met in person.
FACTS
[2]
The
applicant is a 33-year-old citizen of Pakistan. On August 26, 2006, he
married Bushra Kazmi, who had been granted refugee protection in Canada in June
2005. The couple’s marriage took place over the telephone with the applicant in
Pakistan and Ms. Kazmi in Canada. Their marriage certificate was signed at
that time. Despite their marriage taking place over one and a half years ago,
the applicant and his spouse have yet to meet face-to-face.
The applicant’s relationship
with his spouse
[3]
The
applicant’s wife was previously married and is the mother of a young child. She
and her former spouse were married in 2000, but experienced marital problems
sometime before Ms. Kazmi left Pakistan in 2002. They were
legally divorced in December 2005.
[4]
The
applicant and his wife became aware of one another through mutual acquaintances
while Ms. Kazmi’s family was in the process of finding her another husband.
Members of the two families met and discussed the possibility of marriage, and
the applicant and Ms. Kazmi began corresponding via telephone and e-mail and
decided to marry by telephone with the applicant in Pakistan and Ms.
Kazmi in Canada.
[5]
The
applicant states that he was aware of his spouse’s previous marriage and the
fact that she had a young son, but that those facts did not concern him since
his own parents had been divorced many years earlier.
[6]
After
their marriage in August 2006, the applicant’s wife informed Citizenship and
Immigration Canada of her change of marital status and was advised that she
could include the applicant in her application for permanent residence as a
member of the family class. Accordingly, in February 2007, the applicant
submitted an application for permanent residence at the Canadian High
Commission in Islamabad.
[7]
On
August 8, 2007, the applicant attended an interview at the Canadian High
Commission, wherein he was asked a number of questions regarding his
relationship with Ms. Kazmi. The interview was conducted by visa officer Syed
Abdul Hameed.
Decision under review
[8]
By
letter dated August 16, 2007, the applicant was notified that his application
for permanent residence had been refused on account of the fact that there was
“not much credible evidence of contact” between the applicant and his wife. As
visa officer Hameed stated:
You and your spouse (Head of Family) are
married only on papers and the marriage has not yet been consummated. You and
your spouse have not yet met in person. Your spouse has previously been married
and has a seven year old son from her previous relationship. There is not much
credible evidence of contact between you and your spouse. I am not satisfied
that the relationship between you and your spouse is not a bad-faith
relationship.
[…]
I am satisfied that you do not meet the
requirements for [a] permanent resident visa as a family member of Bushra
Kazmi. I am therefore, refusing your application pursuant to section 11(1) of
the Immigration and Refugee Protection Act.
[9]
On
October 15, 2007, the applicant filed this application for leave and judicial
review of the visa officer’s decision.
ISSUE
[10]
The
issue to be considered in this application is whether the visa officer erred in
concluding that the applicant was not a member of the family class because his
marriage was not genuine.
STANDARD OF REVIEW
[11]
The
issue before the Court concerns whether the visa officer erred in concluding
that the applicant’s marriage was not made in good faith. In Rosa v. Canada (Minister of
Citizenship and Immigration), 2007 FC 117, [2007] F.C.J. No. 152 (QL),
Mr. Justice Barnes considered the appropriate standard of review to apply to
such a decision, stating at paragraph 23:
¶ 23 The determination of whether a marriage
is genuine is essentially a fact-based inquiry. Here the Board noted that such
a decision requires consideration of many factors including the length of any
prior relationship or cohabitation between the parties, their knowledge of one
another’s histories, their behaviour together, the details of their engagement
and the marriage ceremony, the frequency and substance of their communications
while apart and the level of their financial dependence. These are all matters
which require the sorting and weighing of evidence and the assessment of
credibility -- a process which the Board is well situated to carry out. I
accept that the applicable standard of review for such matters is patent
unreasonableness: see Canada
(Minister of Citizenship and Immigration) v. Navarrete, [2006] F.C.J. No.
878, 2006 FC 691 and the cases cited therein at para. 17.
[12]
However,
in light of the recent Supreme Court of Canada decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] S.C.J. No. 9 (QL), the standard of patent unreasonableness
has now been eliminated, and courts conducting a standard of review analysis now
focus on two standards: correctness and reasonableness. The jurisprudence is that
determinations of whether a marriage is genuine is purely a question of fact
entitled to the highest level of curial deference: see Khella v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1357, 58 Imm. L.R. (3d) 15 per de
Montigny J. at paragraph 12.
[13]
The
grant of deference supports a reasonableness standard of review and implies, as
the Court held at paragraph 49 of Dunsmuir, that courts will give “due
consideration to the determinations of decision makers” when reaching a
conclusion. While the decision in Rosa, above, was made in the context
of a decision of the Immigration Appeal Division of the Immigration and Refugee
Board, the same considerations are at play when considering whether a visa
officer erred in finding that a marriage was not made in good faith.
Accordingly, the visa officer’s decision in the case at bar will be reviewed on
a standard of reasonableness.
RELEVANT LEGISLATION
[14]
An
application for permanent residence as a member of the family class may be
denied based on section 4 of the Immigration and Refugee Protection Regulations,
S.O.R./2002-227, which states:
|
4. For
the purposes of these Regulations, a foreign national shall not be considered
a spouse, a common-law partner, a conjugal partner or an adopted child of a
person if the marriage, common-law partnership, conjugal partnership or
adoption is not genuine and was entered into primarily for the purpose of
acquiring any status or privilege under the Act.
|
4. Pour l’application du présent
règlement, l’étranger n’est pas considéré comme étant l’époux, le conjoint de
fait, le partenaire conjugal ou l’enfant adoptif d’une personne si le
mariage, la relation des conjoints de fait ou des partenaires conjugaux ou
l’adoption n’est pas authentique et vise principalement l’acquisition d’un
statut ou d’un privilège aux termes de la Loi.
|
ANALYSIS
Issue: Did the visa
officer err in concluding that the applicant was not a member of the family
class because his marriage was not genuine?
[15]
The
applicant submits that the visa officer’s decision provided three reasons why
the applicant did not meet the requirements for permanent residence as a member
of the family class. Those reasons are:
1.
the
marriage had not yet been consummated and the applicant and his wife had not
yet met in person;
2.
the applicant’s
wife was previously married and has a seven-year-old son; and
3.
there was
not much “credible evidence of contact” between the applicant and his wife.
[16]
However,
the applicant argues that the visa officer:
1.
failed to
provide any reasons why his wife’s previous marriage was relevant to a finding
that the applicant’s marriage was not genuine;
2.
failed to
consider the applicant’s explanation as to why he and his wife have not yet met
in person or consummated their marriage; and
3.
failed to
give the applicant an adequate opportunity to respond to the visa officer’s
concerns about the lack of evidence of contact between him and his wife.
Each
of these matters will be considered in turn.
Ms.
Kazmi’s previous marriage
[17]
In
addition to the reasons provided to the applicant in the letter dated August
16, 2007, the visa officer’s reasons for decision are also encompassed within
the visa officer’s notes generated through the Computer Assisted Immigration
Processing System (the CAIPS notes). In the case at bar, the notes made by the
visa officer stated that the applicant would be interviewed “to address the
relationship and compatibility factors” because of Ms. Kazmi’s previous marriage.
The CAIPS notes then record the results of the interview as follows:
FN [the applicant] says that he does not
have original divorce docs for HOF’s [Ms. Kazmi’s] previous marriage, says that
he does not [know] about the details of HOF’s previous marriage, says that he
never asked for details, says that he does not know if HOF’s former spouse is
in pakistan, US or in canada, says that he does not know where divorce took
place between HOF and her former spouse, says that he only knows that the
divorce cert was issued from karachi-pakistan, says that he was told that HOF’s
former spouse was a bit offensive to HOF.
says that his mother’s friend had know
HOF’s family, his mother arranged his relationship with HOF, says that he does
not have a specific reason for marrying HOF except that his mother was looking
for a match for him and when his mother’s friend told his mother about HOF, his
mother and himself agreed for the wedding, says that his mother has not yet met
with HOF in person, says that his mother was told by her friend that HOF is
good and will be a good match for her son (FN).
says that he has not yet met HOF in person.
says that he knows that HOF has a son
from her previous relationship and her son lives with her in canada.
says that HOF’s son is approx 7 yrs old.
says that he does not know about HOF’s date of birth.
says that he does not have any evidence
of contact to submit, says that HOF
sent him a couple of photos but he does not have envelops for those photos.
conclusion: FN and HOF are married only on papers, FN and HOF
have not yet met in person, HOF has previously been married
and has a 7-yr old son from her previous marriage. There is not much credible
evidence of contact between FN and HOF.
I am not satisfied that the relationship between FN and HOF is not a bad-faith relationship. …
[18]
In
reading the decision letter and CAIPS notes together, it is clear that Ms.
Kazmi’s previous marriage flagged the visa officer’s concern that the applicant’s
marriage may not be genuine.
[19]
The
respondent states that the relevance of Ms. Kazmi’s previous marriage is
explained within the visa officer’s Affidavit, filed on December 5, 2007. In
the Affidavit, the visa officer states at paragraphs 7-8:
¶ 7 One of the issues that I raised
during the interview was the extent to which the Applicant and his sponsor had
an understanding and an awareness of each other’s circumstances. I was
concerned that neither the Applicant, nor his mother, who apparently was
looking for a spouse for him, had personally met or knew of the HOF. In local culture, where there are
previous relationships / children involved, second marriages do take place, but
only when there are compassionate circumstances at play. For example, where the
two potential spouses come from the same extended family or where the
respective families for both persons are close friends. In those situations, it
is not unheard of that people will get married, but even in the situation the
two people would discuss issues like child care and who will financially
support the child. It is expected, however, that the previously unmarried
spouse would want to know the details of why the other partner’s marital
relationship ended.
¶ 8 None of those factors were
present in the Applicant’s case. For example, the Applicant displayed little
knowledge about his spouse’s previous marital relationship. He states that he
did not ask her for details about her former spouse. The applicant did not even
know his spouse’s date of birth. In addition, he and his spouse were married
through proxy and, consequently, the marriage has not been consummated.
[20]
In
reading the decision as a whole, the above-mentioned rationale is not relevant
to the ultimate decision, only to the reason why the visa officer interviewed
the applicant to assess the applicant’s true relationship and compatibility
with his wife, i.e. whether there was a genuine marriage. Accordingly, I
conclude that the affidavit elaborates with background, but does not provide a
late explanation for the decision. If it did, I would have concluded that the
visa officer failed to provide the applicant with adequate reasons for
rejecting his application.
Failure to consider the
applicant’s explanation
[21]
Among
the visa officer’s reasons for refusing the applicant’s application was that he
and his wife had never met in person or consummated their marriage.
Accordingly, the visa officer noted that they were only married on paper and
that this was not sufficient to establish that the marriage was made in good
faith. The applicant, however, deposes in his Affidavit that when asked why he
and his wife had never met in person, he stated that it was because his wife
had claimed refugee protection against Pakistan and,
accordingly, was unable to return for either the marriage or thereafter.
Further, the applicant states that this information would have been known to
the visa officer given the fact that his wife was a Convention refugee and
applied for permanent residence in Canada as a “Protected
Person.”
[22]
However,
nowhere in the decision letter or CAIPS notes does the visa officer account for
this fact in reaching a decision. Rather, the visa officer appears to wholly
ignore Ms. Kazmi’s protected status in basing his decision, at least in part,
on the fact that the applicant and his wife have never met in person or
consummated their marriage. In fact, the visa officer even mentions this fact
in his Affidavit, stating at paragraph 8 that the applicant “and his spouse
were married through proxy and, consequently, the marriage had not been
consummated.”
[23]
It
is relevant and important evidence that Ms. Kazmi cannot return to Pakistan on account
of the fact that she left the country for reason of persecution, and the
applicant cannot come to Canada without a valid visa. This is why they did
not meet in person or visit one another. However, at no point does the visa
officer account for these facts in the refusal letter or the CAIPS notes. Rather,
the visa officer comes to the direct opposite conclusion by relying on the lack
of contact as one of his reasons why the marriage was not genuine. Accordingly,
the Court finds that the visa officer’s reliance on the fact that the applicant
and his wife have not yet met in person or consummated their marriage was unreasonable
since it was made without regard to the evidence before him. Moreover, the visa
officer breached his duty to explain this relevant and important evidence. The
Court must infer that the silence on this evidence means the decision was made
without regard to this evidence. This is an unreasonable decision.
Opportunity to respond
to concerns
[24]
The
applicant submits that the visa officer erred in failing to provide him with an
opportunity to respond to concerns that he failed to proffer adequate evidence
of ongoing contact in order to establish that his marriage was genuine. The
applicant states in his Affidavit, dated October 23, 2007, that while he
brought a number of greeting cards and pictures to the interview, he failed to
bring letters and e-mails that he and his wife had written to one another. The
applicant argues that had the visa officer made his concerns known at the
interview, then the applicant would have requested the ability to forward the
letters and e-mails to the visa officer thereafter.
[25]
In
the CAIPS notes, the visa officer states that the greeting cards and pictures
were given no weight because the applicant failed to submit envelopes with
them, thereby meaning that it was impossible to determine when each was sent or
if they were sent together. At no point do the CAIPS notes reflect that the
applicant mentioned he possessed further evidence of contact.
[26]
The
onus of establishing the bona fides of a marriage lies with the
applicant. As Mr. Justice Evans, then sitting as a Federal Court judge, stated
in Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172
F.T.R. 262 at paragraph 6, visa officers must base their decisions on the
information provided to them by the applicant:
¶ 6 It is well established that it is the
responsibility of a visa applicant to put before the officer all the material
necessary for a favourable decision to be made. Hence, visa officers are under
no general legal duty to ask for clarification or for additional information
before rejecting a visa application on the ground that the material submitted
was insufficient to satisfy the officer that the applicant had met the relevant
selection criteria.
Accordingly,
the onus was on the applicant to provide the visa officer with whatever
relevant evidence of contact was in his possession, and the visa officer was
under no obligation to make further inquiries into what other evidence of
contact the applicant may or may not have possessed. This is particularly the
case since the applicant was advised in a letter dated July 4, 2007 to bring to
the interview evidence of contact with his spouse.
CONCLUSION
[27]
For
these reasons, this application for judicial review is allowed, the decision of
visa officer Hameed is set aside and the matter shall be sent back for
redetermination by a different visa officer.
[28]
Neither
party considered that this case raised a question which ought be certified for
appeal. The Court agrees.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This
application for judicial review is allowed;
2.
The
decision of the visa officer is set aside; and
3.
The
matter is referred to another visa officer for redetermination after providing
the applicant with an interview.
“Michael
A. Kelen”
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