Date: 20000815
Docket: IMM-5240-99
BETWEEN:
DANIEL ESSEL QUAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a judicial review application of the decision of the Immigration and Refugee Board, Appeal Division, dated October 5, 1999 wherein the Appeal Board dismissed the applicant's appeal to sponsor his wife for permanent residence.
FACTS
[2] The applicant is a permanent resident of Canada. He seeks to sponsor his wife, whom he married by proxy in Ghana.
[3] The visa officer was not satisfied that a marriage took place. Furthermore, in the visa officer"s opinion, even if there was a marriage, it was for the purpose of facilitating the entry to Canada under the family class, since the sponsoree was not able to provide much details about the applicant. The visa officer refused the application under subsection 4(3) of the Immigration Regulations.
THE APPEAL BOARD'S DECISION
[4] The Appeal Board noted that the applicant did not sign his marriage certificate and did not know who signed it in his place.
[5] The Appeal Board also underlined that the statutory declaration contained two major errors. First, a person by the name of Daniel Ayitey Botchway was referred to as the head of the family and uncle of the applicant, however, the applicant acknowledged that he did not know this person. Second, the statutory declaration states that Samuel Essel Quao, the applicant's father, was present at the ceremony, whereas, both the applicant and his mother testified that the applicant's father had already returned to Canada at the time of the marriage.
[6] The Appeal Board refused to overturn the visa officer's decision and dismissed the appeal for want of jurisdiction.
THE APPLICANT'S POSITION
[7] The applicant alleges that there is a terrible problem of institutional bias which is clearly raised by this situation.
[8] The applicant submits that upon his arrival to Canada in 1995, he told his parents about his desire to marry his high school sweetheart. His father went to Ghana to arrange the wedding.
[9] The applicant submits that an uncle of his mother, a person whom he does not know, represented him at the marriage and signed on his behalf. The applicant alleges that it is a common and legal fashion of getting married in Ghana.
[10] Later on, the applicant's mother visited the wife's family, and the applicant submits that under Ghanian law, this is sufficient for the marriage to be valid, as was explained to the Board.
[11] The applicant alleges that letters were produced, photographs of the marriage were presented as well as a number of telephone bills.
[12] The applicant submits that a marriage by proxy is legal in Ghana. He alleges that there is a discriminatory impact if the Board wishes to force every Ghanian to make complete proof of Ghanaian law and pretends ignorance of the law.
[13] The applicant submits that family life is fundamental under international law and must be protected.
[14] The applicant submits that both his wife and himself are suffering a prohibited discrimination based on their ethnic and national origins.
THE DEFENDANT'S POSITION
[15] The defendant states that the applicant came to Montreal to live with his parents in 1995. Contrary to his observation that he always worked, the defendant notes that the applicant worked for two years as a machine operator and was laid off. He went on unemployment and then to school.
[16] The defendant underlines the fact that the father went to Ghana supposedly to prepare the customary marriage, yet returned to Canada before the celebration.
[17] The defendant notes that the marriage was supposedly celebrated on September 18th, 1996, yet the applicant was not present and does not remember the date.
[18] The defendant points out to the fact, that the wife did not go and live with the applicant's family after the marriage, as was the local tradition.
[19] The defendant notes that in 1997, the applicant moved following a fire, yet he did not forward his new address to his supposedly wife of eight month now.
[20] The defendant reminds the Court that a statutory declaration was signed attesting that the applicant's father and Daniel Ayitey Botchway attended the customary marriage. Yet, the applicant's father was not present at the marriage and the applicant admitted that he does not know who Mr. Botchway is.
[21] The defendant notes that the statutory declaration signed by the sponsoree's parents states that they witnessed the customary marriage and that the couple was declared husband and wife. However, the applicant did not attend this ceremony.
[22] The defendant underlines the fact that the sponsoree presented a letter and a card dated 1997 and another in 1998 as proof of her wedding. She did not bring any pictures, nor did she have a wedding ring. She also, did not know where the applicant was working.
[23] The defendant notes that the marriage certificate holds the applicant's signature, yet he was not present at the ceremony.
[24] The defendant submits that all the letters from the sponsoree to the applicant as well as the phone bills, were filed after the refusal of the application.
[25] The defendant submits that since no evidence was adduced as to the law of Ghana regarding the customary marriages, the conclusion of the Board with regard to the sufficiency of the evidence as to the existence of a legally valid marriage is a pure question of fact.
[26] The defendant submits that the prerequisite elements as to the legality of such marriage is not a matter of which the Board can take judicial notice of. The defendant submits that the applicant did not meet his burden of proving the essential elements of a customary marriage.
[27] The only new evidence before the Board were the statements made by the applicant and they were self serving evidence, given by non-experts. As to the pictures, phone bills and letters, they did not prove the alleged marriage.
ANALYSIS
[28] Section 77 of the Immigration Act provides for the sponsor"s right of appeal:
| 77.(1) Where a person has sponsored an application for landing made by a member of the family class, an immigration officer or visa officer, as the case may be, may refuse to approve the application on the grounds that
(a) the person who sponsored the application does not meet the requirements of the regulations respecting persons who sponsor applications for landing, or
(b) the member of the family class does not meet the requirements of this Act or the regulations,
and the person who sponsored the application shall be informed of the reasons for the refusal.
[...]
(3) Subject to subsection (3.1), a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
|
|
| 77. (1) L'agent d'immigration ou l'agent des visas, selon le cas, peut rejeter une demande parrainée d'établissement présentée par un parent pour l'un ou l'autre des motifs suivants " dont doit être alors informé le répondant_:
a) le répondant ne remplit pas les conditions fixées par les règlements;
b) le parent ne remplit pas les conditions fixées par la présente loi et ses règlements.
[...]
(3) S'il est citoyen canadien ou résident permanent, le répondant peut, sous réserve des paragraphes (3.01) et (3.1), en appeler devant la section d'appel en invoquant les moyens suivants_:
a) question de droit, de fait ou mixte;
b) raisons d'ordre humanitaire justifiant l'octroi d'une mesure spéciale.
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[29] Justice Reed held in Rattan v. M.E.I.(1994), 73 F.T.R. 195:
| An appeal under section 77 is not a judicial review where only the correctness of the immigration officer's decision on the basis of the material before him or her is under consideration. This is clear from subsection 77(3) which allows for appeals on questions of fact and from the procedure followed which allows the sponsor, in Canada, to call witnesses and other evidence [...]. The Appeal Division's role is not to determine whether the immigration officer's decision was correctly taken, but to determine if the sponsoree is in fact a member of the class of persons excluded by s. 4(3) of the Regulations: Mohammed v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 90 (C.A.) at 94 per Thurlow C.J. For that purpose the sponsor's evidence, and the immigration officer's decision must be reviewed in coming to the decision. If the sponsor can satisfy the panel that the immigration officer's conclusions were incorrect, an appeal is allowed. |
[30] The applicant had to prove to the Appeal Division that the visa officer erred in refusing to grant a permanent residence visa to his wife. The visa officer was not satisfied that a marriage took place. Before the Board, the applicant testified that he did not remember his wedding date. He claimed that his father went to Ghana to arrange his wedding, yet, he later testified that his father left before the wedding took place. He admitted that he did not sign the marriage certificate and did not know who signed it on his behalf. In my opinion, even if a marriage by proxy took place, and if the applicant did not know personally the signatory, surely he could find out who signed on his behalf. Furthermore, the applicant would necessarily know the date of his marriage to his sweetheart.
[31] As to the customary law of marriage, the applicant had the duty of providing objective evidence of such law and bringing it to the Board"s attention. International, national or even customary law are not within the general knowledge of the Board. It is not the sort of information that the Board can be expected to know or take judicial notice of.
[32] I am not convinced that the Board erred in dismissing the appeal. The applicant failed to bring evidence to prove that a marriage took place. Quite the contrary, his testimony and the documents submitted left serious doubts as to the existence of such marriage.
[33] The applicant brought some serious allegation of bias, yet failed to sustain them. In my view, they are unfounded.
[34] This judicial review is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
August 15, 2000
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