Date:
20091026
Docket: IMM-51-09
Citation: 2009 FC 1089
BETWEEN:
TEK MING LAU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON D. J.
Introduction
[1]
These
reasons follow the hearing of an Application for Judicial Review of a decision
of the Immigration Appeal Division (the “IAD”) of the Immigration and Refugee
Board, dated the 17th of December, 2008, whereby the IAD dismissed
an appeal from a decision of a Visa Officer at the Canadian Consulate General
in Hong Kong refusing to approve the permanent resident visa application made
by Ying Feng of the People’s Republic of China who was sponsored to come to
Canada by Tek Ming Lau (the “Applicant”). The Visa Officer’s decision was
motivated by his or her conclusion that a purported marriage between Ying Feng
and the Applicant was deemed not to be genuine and to have been entered into
primarily for the purpose of gaining status or privilege under the Immigration
and Refugee Protection Act. The IAD dismissed the appeal
before it on grounds different from the ground relied on by the Visa Officer.
Background
[2]
The
factual background giving rise to this Application for Judicial Review is
essentially not in dispute and may be summarized as follows:
-
The
Applicant was born in the People’s Republic of China (“China”) on the 26th
of January, 1954. He remained a citizen of China at all times
relevant to this Application. He was a resident of China until 1990
when he moved to Canada to seek refugee status;
-
Ziao
Ying Huang (“Huang”) was born in China on the 23rd
of June, 1962;
-
The
Applicant and Huang married in China in 1984. A son was born to them in China on the 22nd
of November, 1985;
-
Like
the Applicant, Huang remained a resident of China from birth until she moved to
Canada in 1990, sometime before the Applicant moved to Canada, and she, like
the Applicant, was a citizen of China at all times relevant to this
Application;
-
The
Applicant and Huang were unsuccessful on their application for refugee status
in Canada but were successful on an application for landing from within Canada on
humanitarian and compassionate grounds. They became permanent residents of Canada in 1999;
-
A
second child, a daughter, was born to the Applicant and Huang in Canada on the 14th
of March, 1992;
-
While
the IAD expresses some doubt about this particular fact, the Applicant attests
that he has a younger brother in China with whom he has
maintained contact throughout his absence from China. If the
Applicant has such a brother, the IAD expresses doubt about the significance of
any such contact;
-
The
Applicant returned to China for a visit in 2000 and returned again in
late December, 2004 for the purpose of obtaining a divorce from Huang and of
settling up division of property and custody matters;
-
By
contrast, Huang returned to China about every year or year and a half, for ten
days to a month on each occasion, from the time she obtained resident status in
Canada in 1999
until the time of the divorce between she and the Applicant in early January,
2005. Apparently her purpose in returning was to visit family, including her
ill mother;
-
The
Applicant and Huang jointly owned an apartment in China, apparently
as an investment, which was transferred to Huang in the property settlement
associated with their divorce;
-
The
Applicant attests that he became “increasingly dissatisfied” with his marriage
to Huang from 1995 onward. Eventually he and Huang divorced on the 6th
of January, 2005, in China, by mutual consent;
-
The
Applicant and Huang attested that they chose to divorce in China since they
were advised that they could obtain the divorce there more quickly than they
could in Ontario and because they were able to settle the disposition of their
joint property and the issue of custody of their children in China at the same
time;
-
Seven
months after the divorce, the Applicant married Ying Feng in China. The
Applicant attested that it was a pre-condition to his marriage to Ying Feng
that the parties provide to the marriage office a certificate certifying to
their then unmarried (single or divorced) status and that he provided such a
certificate.
The Decision Under
Review
[3]
Earlier
in these reasons, I indicated that the IAD dismissed the appeal before it on
grounds different from the ground relied on by the Visa Officer. At paragraph
[7] of its reasons, the IAD wrote:
After reading the said submissions [from
counsel for the Applicant and counsel for the Respondent], and analyzing the
law, the panel finds, on a balance of probabilities that the divorce in
question [the divorce between the Applicant and Huang] was not undertaken in
compliance with Canadian law and is not deemed to be a valid divorce according
to the laws of Canada. Subsequently [Consequently], the appellant is still married
to his wife Ziao Ying Lau nee Ziao Ying Huang, and hence is not eligible to
sponsor the Applicant [Ying Feng] as he does not meet the definition of sponsor
according to the Immigration and Refugee Protection Act .
The definition of
“sponsor” is contained in subsection 130(1) of the Immigration and Refugee
Protection Regulations.
[4]
The
IAD very briefly disposes of the ground relied on by the Visa Officer. In it
conclusion at paragraphs [27] to [29] of its reasons, the IAD writes:
Therefore, given the above reasoning, in
the panel’s opinion, on a balance of probabilities, the divorce before the
appellant and Huang is not valid in accordance with the Marriage Act of
Canada, and subsequently the appellant [here the Applicant] is not eligible
to sponsor the applicant [Ying Feng].
As this appeal is dismissed, it is not
necessary for the substantive issue of whether the marriage [between the
Applicant and Ying Feng] is bona fide to be heard by this panel.
The appeal is dismissed.
[5]
Section
22 of the Divorce Act
deals with recognition in Canada of foreign divorces. That section reads
as follows:
|
22. (1) A
divorce granted, on or after the coming into force of this Act, pursuant to a
law of a country or subdivision of a country other than Canada by a tribunal
or other authority having jurisdiction to do so shall be recognized for all
purposes of determining the marital status in Canada of any person, if either
former spouse was ordinarily resident in that country or subdivision for at
least one year immediately preceding the commencement of proceedings for the
divorce.
(2) A
divorce granted, after July 1, 1968, pursuant to a law of a country or
subdivision of a country other than Canada by a tribunal or other authority
having jurisdiction to do so, on the basis of the domicile of the wife in
that country or subdivision determined as if she were unmarried and, if she
was a minor, as if she had attained the age of majority, shall be recognized
for all purposes of determining the marital status in Canada of any person.
(3) Nothing in this
section abrogates or derogates from any other rule of law respecting the
recognition of divorces granted otherwise than under this Act.
|
22. (1) Un
divorce prononcé à compter de l’entrée en vigueur de la présente loi,
conformément à la loi d’un pays étranger ou d’une de ses subdivisions, par un
tribunal ou une autre autorité compétente est reconnu aux fins de déterminer
l’état matrimonial au Canada d’une personne donnée, à condition que l’un des
ex-époux ait résidé habituellement dans ce pays ou cette subdivision pendant
au moins l’année précédant l’introduction de l’instance.
(2) Un
divorce prononcé après le 1er juillet 1968, conformément à la loi
d’un pays étranger ou d’une de ses subdivisions, par un tribunal ou une autre
autorité compétente et dont la compétence se rattache au domicile de
l’épouse, en ce pays ou cette subdivision, déterminé comme si elle était
célibataire, et, si elle est mineure, comme si elle avait atteint l’âge de la
majorité, est reconnu aux fins de déterminer l’état matrimonial au Canada
d’une personne donnée.
(3) Le
présent article n’a pas pour effet de porter atteinte aux autres règles de
droit relatives à la reconnaissance des divorces dont le prononcé ne découle
pas de l’application de la présente loi.
|
[6]
The
IAD determined that subsection 22(1) simply does not apply on the facts of this
matter since neither the Applicant nor Huang was ordinarily resident in China for at least
one year immediately preceding the commencement of proceedings for their
divorce.
[7]
Similarly,
subsection 22(2) does not apply on the facts of this situation.
[8]
In
the result, subsection 22(3) of the Divorce Act, on the facts of this
matter, refers the issue of recognition of the divorce purportedly granted to
the Applicant and Huang in China, on the facts of this matter, back to the
common law which constitutes other rules of law respecting the recognition in
Canada of divorces granted otherwise than under the Divorce Act.
[9]
The
IAD writes at paragraphs [12] to [15] of its reasons:
... Section 22(3) of the Divorce Act,
1985, allows for the recognition of foreign divorces on the basis of
common-law principles, which have been the subject [of] a number of legal cases
over the years, many of which were referred to by counsel for the appellant [here
the Applicant] in his able submission of 23 October 2008.
The panel does not deem it necessary to
quote many of the cases that have been set out by counsel for the appellant in
his submissions, because it has the advantage in being able to examine this
whole issue of foreign divorces in the context of immigration law by examining
the recent Federal Court case of Amin, Tariq v. M.C.I., (F.C., no.
IMM-1293-07, Barnes, February 8, 2008; 2008 FC 168). This case was referred to
by counsel for the Minister and was subsequently commented on by the
appellant’s counsel in his reply of 21 November 2008.
Mr. Justice Barnes, in the Amin
decision indicated that the obvious intent of section 22(1) of the Divorce
Act, 1985 was to require that some form of adjudicative or official
oversight be present before Canada will recognize a foreign
divorce. He went on to state that the common-law principles, which provide for
recognition of foreign divorces, extend beyond the need for there to be a real
and substantial connection to the place of divorce and include an over-arching
requirement for due process and fairness.
Mr. Justice Barnes goes on to indicate
that the real and substantial test does not arise until a foreign divorce has
been determined, in Canada, to be legally valid in the
place where it was granted and is also a divorce obtained by a process that is
consistent with notions of fairness and is in harmony with Canadian public
policy. He indicates that the connection requirement is a further
pre-requisite to the Canadian recognition of a foreign divorce to prevent forum-shopping
and similar problems.
[10]
The
IAD goes on to review the evidence before it of the attachment of the Applicant
and Huang to China at the time
of their divorce. While it acknowledges the evidence of connection, it
concludes:
In the panel’s opinion, seeking a divorce
in the circumstances of this appeal would in fact not be in harmony with
Canadian public policy, and would offend Canadian notions of a genuine
divorce. To allow residents of Canada
to divorce in a jurisdiction, in which they do not have a connection to [sic]
of any substantive nature, would offend a Canadian’s notion of fairness and
would not be in harmony with Canadian public policy.
[11]
The
decision under review, quoted earlier in these reasons, followed.
The Issues
[12]
I
am satisfied that the issues on this Application for Judicial Review are first,
the appropriate standard or standards of review; second, whether the divorce
obtained in China by the Applicant and Huang was properly determined to be a valid
divorce in that country; and third, whether the IAD erred in a reviewable
manner in determining that the divorce obtained in China between the Applicant
and Huang does not meet the real and substantial attachment or connection test,
on the facts of this matter, as that test has been interpreted to date.
Analysis
1) Standard
of Review
[13]
In
Canada (Citizenship
and Immigration v. Hazimeh),
Justice Russell wrote at paragraphs 16 to 20 of his Reasons:
The Respondent relies upon Ishmaeli v.
Canada (Minister of Citizenship and
Immigration),
... at paragraph 19 for the following:
The onus on the applicant to refute the
Board’s findings is a heavy one. The applicant must be in a position to show
that the conclusions reached were perverse or capricious or so unreasonable
that the Court is duty-bound to set the decision aside.
Sivasamboo v. Canada (Minister of Citizenship and
Immigration),
... held that the IRB is a specialized body dealing with a highly complex
factual and regulatory context in which its decisions are made ... . A
supervisory court should only intervene with the findings and conclusions of
fact of a specialized tribunal when it is shown to be a manifest or palpable
error that is clearly patently unreasonable ... .
Chieu v. Canada (Minister of Citizenship and Immigration), ... citing Pushpanathan
v. Canada (Minister of Citizenship and
Immigration)
..., held ... that for legal questions of general importance in decisions of
the IRB the appropriate standard is correctness.
The Court in Dunsmuir v. New Brunswick
... held that when applying the correctness standard in respect of
jurisdictional and some other questions of law, a reviewing court should not
show deference to the decision-maker’s reasoning process; it should rather
undertake its own analysis of the question and decide whether it agrees with
the determination of the decision-maker; if not, the Court should substitute
its own view and provide the correct answer.
The issues raised by the Applicant
involve questions of law, and in light of the case law before me, I find the
appropriate standard of review is correctness.
[citations omitted]
[14]
With
the following qualifications, I adopt the foregoing as my own. The second
issue question cited above, that is, whether the divorce obtained in China by
the Applicant and Huang was properly determined to be a valid divorce in that
country, is, I am satisfied a question of law where the appropriate standard of
review is correctness. The third issue question cited above, that is, whether
the IAD erred in a reviewable manner in determining that the divorce obtained
in China between the Applicant and Huang does not meet the real and substantial
attachment or connection test, on the facts of that matter, as that test has
been interpreted to date, is a mixed question of fact and law and I should
therefore review the decision of the IRB to determine whether it falls within
the range of possible, acceptable outcomes which are defensible in respect of
the facts and law.
2) Did the IRB Properly Determine the
Chinese Divorce Between the
Applicant and Huang to be Validly
Obtained in China?
[15]
For
ease of reference, I repeat here the text of subsection 22(3) of the Divorce
Act:
|
22. (3)
Nothing in this section abrogates or derogates from any other rule of law
respecting the recognition of divorces granted otherwise than under
this Act.
[emphasis added]
|
22. (3) Le
présent article n’a pas pour effet de porter atteinte aux autres règles de
droit relatives à la reconnaissance des divorces dont le prononcé ne
découle pas de l’application de la présente loi.
[je souligne]
|
[16]
In
Amin v. Canada (Minister of Citizenship and Immigration) an
authority heavily relied on by the IRB, Justice Barnes wrote at paragraph 25 of
his Reasons:
It seems to me that the real and
substantial connection test does not arise until a foreign divorce has been
determined in Canada to be legally valid in the
place where it was granted and is also a divorce obtained by a process
that is consistent with Canadian notions of fairness and in harmony with
Canadian public policy. In other words, this is not a test by which the legal
frailties of a foreign, extra-judicial divorce will be overcome. ...
[emphasis added, one citation omitted]
[17]
I
read the foregoing quotation as requiring a determination in Canada
regarding validity, in this case, in China. Here, the IRB made no
determination whatsoever as to whether the divorce at issue was legally valid
in the place where it was granted, that is to say, China, against the
concept of real and substantial connection. Rather, it concluded that, on a
balance of probabilities, the divorce at issue was not undertaken in compliance
with Canadian law and therefore was not deemed a valid divorce according
to the laws of Canada. It then went on to consider the Canadian
notions of fairness and harmony with Canadian public policy portion of the test.
In so doing, I am satisfied that, against a standard of review of correctness,
the IRB simply failed to answer the question of whether or not the divorce here
at issue was a “... divorce granted” otherwise than under the [Divorce Act],
and in so doing failed to fully apply the test that it was required to apply
under subsection 22(3) of the Divorce Act. Whether its conclusions
regarding the second portion of the test, that is to say the Canadian notions
of fairness and harmony with Canadian public policy portion, would have
remained the same had it properly applied the first portion, that is to say the
“... divorce granted” portion of the test under subsection 22(3) of the Divorce
Act, is not for this Court to speculate on.
3) The IRB’s Analysis and Conclusions
Regarding the Canadian Notions of
Fairness and Harmony With Canadian
Public Policy
[18]
In
Castel & Walker,
the learned authors wrote:
In recent years, Canadian courts have
been committed to the view that they will recognize foreign decrees of divorce
where there existed some real and substantial connection between the petitioner
and the respondent and the granting jurisdiction at the time of commencement of
the proceedings. The purpose of the rule is to avoid limping marriages.
Whether there exists a real and substantial connection between the granting
jurisdiction and either the petitioner or the respondent must be determined by
the court upon the analysis of all the relevant facts.
[emphasis
added]
[19]
The
concept of “avoiding limping marriages” was recently commented on by Justice G.
A. Campbell of the Ontario Court of Justice in Jahangiri-Mavaneh v. Taheri-Zengekani where
he wrote:
[23] It should only be in very rare
circumstances that a foreign divorce properly obtained pursuant to the laws
of that jurisdiction should not be recognized as being valid: ... This is
not a case involving jurisdictional fraud, which was considered in Powell. As
Dickson J., for the the court, stated ...:
The grounds upon which a decree of
divorce granted by one state can be impeached in another state are, properly,
few in number. The weight of authority seems to recognize, however, that if
the granting state takes jurisdiction on the basis of facts which, if the truth
were known, would not give it jurisdiction, the decree may be set aside. Fraud
going to the merits may be just as distasteful as fraud going to jurisdiction,
but for reasons of comity and practical difficulties, in the past we have
refused to inquire into the former. Even within the limited area of what might
be termed jurisdictional fraud there should be great reluctance to make a
finding of fraud for obvious reasons.
[24] Whether the applicant was reluctant
to participate in the Iranian divorce proceeding or, as she now discloses,
whether she felt “duress”, participate she did. She accepted then the monetary
settlement and raises in this proceeding the impact upon her status in Iran as a divorced woman. In that respect,
she concedes the effect on her and her family of those proper proceedings at
that time. For the applicant now (three years later) to raise the issue of the
extent of her voluntariness to the proceedings and whether she or her father
obtained the divorce settlement appears to me to fall squarely within the
“area” of the merits to which Dickson J. declared that Canadian courts “have
refused to inquire into”.
[emphasis added; citations omitted]
On the facts of this
matter, the IRB would appear in its analysis not to have focused on avoidance
of limping marriages, as a matter of Canadian public policy and as a Canadian
notion of “fairness”, as a low threshold. Beyond the foregoing observation,
the Court, in light of its determination with regard to the second issue before
it, against a standard of review of reasonableness, makes no determination with
respect to the IRB’s determination regarding the notions of fairness and
harmony wth Canadian public policy portion of the test.
Conclusion
[20]
For
the foregoing reasons, this Application for Judicial Review will be allowed,
the decision under review will be set aside and the Applicant’s appeal to the
IAD will be referred back to the Immigration and Refugee Board for rehearing
and redetermination.
Certification of a
Question
[21]
At
the close of the hearing of this Application for Judicial Review, the Court
reserved its decision and undertook to distribute reasons to counsel and to
provide them with an opportunity to make representations on certification of a
question before an Order issues. These reasons will be distributed. Counsel
for the Respondent will have ten (10) days from the date of distribution of the
reasons to serve and file any submissions on certification of a question only.
Counsel for the Applicant will thereafter have seven (7 ) days to serve and
file any responding submissions. Thereafter, counsel for the Respondent will
have three (3) days to serve and file any reply. Only after the expiration of
the foregoing periods and after the Court had had an opportunity to consider
any submissions, will an Order herein issue.
“Frederick E. Gibson”
Ottawa, Ontario
October 26, 2009
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