Date: 20061213
Docket: IMM-2971-06
Citation: 2006
FC 1490
Calgary, Alberta, December 13, 2006
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
MOHAMMAD
FARID KHAN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
Applicant Mohammad Farid Khan, himself a widower, married his deceased
brother’s wife in Pakistan. He is a Pakistani by origin
and now resides in Canada, his new wife is Pakistani
and presently resides there. The Applicant sought to bring his new wife to Canada but her application for a
permanent resident visa was refused by the visa officer. An appeal from that
decision to the Immigration and Refugee Board was dismissed. This Court is
asked to judicially review that decision of the Board.
[2]
For the
reasons that follow I find that the application is allowed.
[3]
The
appropriate provision is section 4 of the Immigration and Refugee Protection
Regulations, 2002, SOR/2002-227 which provides:
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4.
For the purpose 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.
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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’acquistion d’un statut ou d’un privilège aux termes de la
Loi.
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[4]
This provision was
recently considered by Justice Mosley of this Court in Donkor v. Canada
(MCI) 2006 FC 1089 as there were changes to the provision since it was last
substantively considered in Horbas v. Canada (MCI), [1985] 2 FC
369. Justice Mosley in paragraphs 18 and 19 of his Reasons determined that
this new section 4 requires a two pronged test wherein:
1.
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
2.
Consideration must be
given as to whether the relationship entered into primarily for the purpose of
acquiring any status or privilege under the Act.
[5]
Both branches of the
test must be met before a person cannot be considered a spouse or partner.
While the Applicant bears the onus of proof at this stage to demonstrate that a
reviewable error has occurred, if the Applicant succeeds in that respect 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.
[6]
The fundamental facts
of this case are straightforward. The Applicant was born and resided in Pakistan where he married his first wife in 1976. There were three
children by that marriage. The Applicant was permitted to enter Canada , which he did, leaving his wife and children in Pakistan. The Applicant’s first wife died of a heart attack in July
2002. A younger brother of the Applicant married Farzana Bibi who bore him
four children. In 1995 the younger brother died in an automobile accident.
The Applicant’s mother let it be known that, for the honour of the family, the
Applicant should marry his deceased brother’s wife Farzana Bibi which he did in
September 2002. The wedding was apparently a small affair attended only by a
few family members. The Pakistani government issued a marriage certificate the
genuineness of which is not challenged.
[7]
The Applicant
returned to Canada but went back to Pakistan from time to time for periods of several
months. The evidence shows many phone calls were placed by the Applicant to Pakistan, presumably to his new wife.
[8]
The Applicant applied
for a permanent resident visa for his new wife so that she could enter Canada. At the time of the initial interview with the visa
officer in Pakistan the Applicant indicated that his wife
may be two months pregnant. The evidence is unclear on this point as the new
wife says that she only stated that she felt dizzy and unwell and that she
might be pregnant but was uncertain. The visa officer suggested a pregnancy
test which was conducted and turned out to be negative. The visa officer
rejected the application stating in a letter dated October 2, 2004:
Section
4 of the regulations, states that, for the purpose of these regulations, no
foreign national shall 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 or was entered
into primarily for the purpose of acquiring any status or privilege under the
Act.
You
were interviewed at this High Commission on June 14, 2004. I have determined
that the relationship between you and your spouse is not genuine and was
entered into primarily for the purpose of acquiring permanent resident for you
in Canada. In reaching this decision the following
factors and information were taken into consideration.
The
fact that you married your late husband’s brother and there is no evidence of
relationship ie letters, greeting cards etc. The wedding photos you submitted
show you and the sponsor and there are no photos of the guests or of the
wedding ceremony. The fact that you displayed limited knowledge about
sponsor’s personal circumstances ie, the place where he lives in Canada, his
age etc.
[9]
The Applicant
appealed this decision to the Board and on May 3, 2006 a decision was issued
rejecting the appeal. It is clear from the Board’s decision that serious
issues as to credibility were present and that the Board found that the
testimony of the Applicant on the one hand and his new wife on the other were irreconcilable.
As to the genuineness of the spousal relationship the Board stated at
paragraphs 19 and 20 of the Reasons:
[19] While
both witnesses’ testimony was consistent with respect to the reasons for the
marriage, the marriage arrangements, details of the wedding and post marital
activities and the couple had an extensive knowledge of their family
composition and their children’s education and circumstances I find that the
mutual background of the witnesses is consistent with that of the family members
who lived together for 15 years and is not indicative of a genuine spousal
relationship between the appellant and the applicant.
[20] The
applicant testified that since the death of the appellant’s wife she takes care
of the appellant’s younger son by cooking, purchasing clothes for him, and
paying his school fees. There was evidence of the appellant’s financial
support which was divided between the applicant and the appellant’s brother who
is the head of the household. I find the evidence of the appellant’s financial
support to the applicant and his immediate family in Pakistan and the applicant’s care for his son
consistent with the relationship between concerned and empathetic family
members who are facing challenges presented by situation of their widowhood and
widowerhood.
[10]
The law is clear that
in a judicial review in these circumstances I must defer to the Board as to its
findings of fact and not interfere unless I find them to be patently
unreasonable. (see e.g. Khella v. Canada (MCI), 2006 FC 1357 at
para 12). However where there has been an error of law the standard is that of
correctness (see e.g. Mugasera v. Canada
(MCI ), 2005 SCC
40 at para 37).
[11]
The issue that arises
in this case is that of the “genuineness” of the relationship as between the
Applicant and his new wife. The facts are clear, they married to preserve the
honour of the family, the Applicant took his deceased brother’s wife as his
own. There has been limited contact between them, after all the Applicant is in
Canada and the new wife cannot come to Canada
and remains in Pakistan.
[12]
In the Donkor
case, supra at paragraph 21 Justice Mosley reviews the questioning of an
officer in that case revealing what might be called a Harlequin romance view of
a “genuine” relationship.
[21] The
respondent submits that the officer properly considered the application. The
officer interviewed the applicant and his spouse in order to assess their
knowledge of each other and the genuineness of the relationship and noted
several inconsistencies in their responses regarding their first meeting and
introduction, their first date, their first sexual encounter, their engagement
rings, lack of knowledge of each other’s family and educational background and
their financial arrangements.
[13]
In Siev v. Canada
(Minister of Citizenship and Immigration) 2005 FC 736 Justice Rouleau of
this Court reviewed certain guidelines set out by the Minister for dealing with
these situations reflecting tests laid down by the Supreme Court of Canada in M
v. H [1999] 2 S.C.R. 3 at paragraph 15.
[15] The
guide OP 2 – Processing Members of the Family Class sets out the tests laid
down by the Supreme Court in M. v. H., 1999 CanL11 686 (S.C.C.), [1999] 2
S.C.R. 3 for determining whether two persons are actually living in a conjugal relationship:
-
shared shelter
(e.g. sleeping arrangements);
-
sexual and
personal behaviour (e.g. fidelity, commitment, feelings towards each other);
-
services (e.g.
conduct and habit with respect to the sharing of household chores)
-
social activities
(e.g. their attitude and conduct as a couple in the community and with their
families);
-
economic support
(e.g. financial arrangements, ownership of property);
-
children (e.g.
attitude and conduct concerning children)
-
the societal
perception of the two as a couple.
From
the language used by the Supreme Court throughout M. v. H., it is clear that a
conjugal relationship is one of some permanence, where individuals are
interdependent – financially, socially, emotionally, and physically – where
they share household and related responsibilities, and where they have made a
serious commitment to one another.
[14]
The conclusion is
appropriate, genuineness is revealed by a shared relationship of some
permanence, interdependence, shared responsibilities and a serious commitment.
[15]
In the present case
the Board appears to have concluded that one cannot have a “genuine”
relationship in a situation where a woman has passed in her status from a
sister-in-law of some fifteen years to that of a wife in a situation where both
parties have recently lost their first spouse. There is no reason why much
needs to change, the families lived together for years. Surely one is not
searching for a “first date – first sexual encounter” situation. Western
Harlequin romance ideals do not apply to everyone.
[16]
The “genuineness” of
the relationship must be examined through the eyes of the parties themselves
against the cultural background in which they have lived. This was done in Khella
supra. Adopting this approach, I find that the Board member erred in concluding that evidence “consistent
with that of family members who lived together for 15 years…is not indicative
of a genuine spousal relationship”.
[17]
The Board noted the uncontradicted
evidence of the applicant and the appellant concerning details about their
marriage and personal knowledge of each other. Moreover, witnesses were
consistent concerning the evidence of the origin of the relationship. However,
it failed to considered cultural factors and the condition of the appellant who
is unsophisticated.
[18]
There were many
reasons why the applicant married his sister-in-law for genuine purposes. The
union was encouraged by the applicant’s mother in order to preserve the family
honour because there were children living in the home. The Applicant’s own
children lived in the same household as the appellant. The Board erred by
ignoring relevant factors and failed to provide evidence on its finding that
their knowledge of each other was solely based on family members living
together for 15 years. This conclusion is unreasonable when considering the
evidence as whole. There is no reason why such a marriage cannot be genuine
given the cultural factors.
[19]
The inconsistencies
raised by the Board took a microscopic view of the evidence before it by focusing
on peripheral points in the case. As mentioned above, the appellant testified
that she was ill and had a fever and she thought she might be pregnant.
[20]
For these reasons I
will send the matter back to be determined again by a different member of the Board.
However I realize that the precise point has not clearly been considered in the
jurisprudence and suggest the following question for certification:
“What
are the proper criteria for consideration of the genuineness of a relationship
under the provisions of section 4 of the Immigration and Refugee Protection
Regulations 2002?
[21]
I will not certify
such a question, or any other question, until I receive submissions from
counsel for the parties. I ask for such submissions within thirty (30) days
from the date of these Reasons.
JUDGMENT
For the Reasons provided herein:
1.
The
application is allowed;
2.
The matter
is returned to the Board for determination by a different member consistent
with these Reasons.
3.
Counsel
for the parties may make submissions as to the certification of a question or
questions within thirty (30) days hereof;
4.
No costs
are awarded.
“Roger
T. Hughes”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2971-06
STYLE OF CAUSE: Mohammad
Farid Khan v. The Minister
of Citizenship and Immigration
PLACE OF
HEARING: Calgary, Alberta
DATE OF
HEARING: December
12, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: HUGHES J.
DATED: December
13, 2006
APPEARANCES:
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Mr. Birjinder
Mangat
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FOR THE APPLICANT
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Mr. Brad
Hardstaff
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FOR THE RESPONDENT
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SOLICITORS
OF RECORD:
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Mangat Law
Office
Calgary,
Alberta
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FOR THE APPLICANT
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John H. Sims,
Q.C.
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FOR THE RESPONDENT
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Deputy
Attorney General
of Canada
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