Date: 20080208
Docket: IMM-1293-07
Citation: 2008 FC 168
Ottawa, Ontario, February 8,
2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
TARIQ
AMIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Tariq Amin from a decision by the
Immigration Appeal Division of the Immigration and Refugee Board (Board). The
only issue raised is whether the Board erred by finding that Mr. Amin had
failed to establish the existence of a legally valid Pakistani divorce which
would have permitted him to sponsor his spouse from a second marriage to
immigrate to Canada.
I.
Background
[2]
There
is little factual controversy in this proceeding. It is the legal significance
of the facts that is in issue.
[3]
Mr.
Amin was first married in Pakistan in 1989. Thereafter,
he successfully sponsored his first wife as a permanent resident to Canada. In 1993,
Mr. Amin’s first marriage was purportedly dissolved in Pakistan in
accordance with the Islamic pronouncement of talaq. The record contains a
notarized Divorce Deed dated October 1993 signed by Mr. Amin which asserts the
dissolution of this marriage by the following declaration:
1. That the executant and the
said Mst. Nazish Nayyar cannot live any more as husband and wife within the
limits of Almighty Allah as above stated.
2. That the executant hereby
divorce his wife namely Mst. Nazish Nayyar daughter of Nayyar Ali Khan, thrice:
‘I hereby pronounce Talaq (divorce) upon
above named Mst. Nazish Nayyar daughter of Nayyar Ali Khan thrice in
presence of witness’
and she is no more wife and she is
‘Harram’ on me. The said Mst. Nazish Nayyar is free to contract marriage
after the expiry of ‘Iddat’ period.
3. That the executant reserves
his right to claim the custody of her minor children at any time.
[4]
It
is perhaps noteworthy that the above Divorce Deed refers to the fact that Mr.
Amin was then residing in "America" and it is
undisputed that his wife was living in Canada. It is also
undisputed that Mr. Amin's declaration of divorce was not registered under
the Muslim Family Laws Ordinance (1961) until 2005.
[5]
Mr.
Amin remarried in Pakistan on March 15, 2002. When Mr. Amin attempted to
sponsor his new wife as a permanent resident to Canada, a question was raised regarding
the 1993 divorce and further evidence was requested to confirm that it was
legally valid in Pakistan. Mr. Amin then petitioned the Lahore High
Court in Rawalpindi seeking a
declaration with respect to the effectiveness of his 1993 divorce declaration
and the lawfulness of his 2002 remarriage. The Court resolved the issue in the
following way:
9. In the instant case,
respondent No. 2 Tariq Amin contracted Nikah with the petitioner on 15.3.2002
after about eight and a half years of Talaaq pronounced by him to his first
wife Mst. Nazish Nayyar on 11.10.1993. So, even though respondent No. 2 had
not given a notice to the Chairman, the divorce dated 11.10.1993 became
effective in Shariah after expiry of 90 days on 11.1.1994, and the marriage
contracted thereafter between the petitioner Mst. Aisha Tariq and respondent
No. 2 Tariq Ameen, it is held, is valid marriage.
[6]
Notwithstanding
this declaration, Mr. Amin’s sponsorship application was refused. The visa
officer who declined the application did so for the following reasons:
As per local family laws, in order to be
legally accepted, a divorce must be registered with a local arbitration council
and a certificate must be issued from the local arbitration council confirming
the details of divorce, i.e. the case number, date of issuance and the date
when the divorce became effective or court orders should be issued from a
family court, i.e. from a family judge.
Your sponsor was previously married to
Nazish Nayyar. The divorce certificate which you submitted for your sponsor's
previous marriage states that notice for divorce was served to the arbitration
council on April 30, 2005 and the decision was made on July 30, 2005. As a
procedural fairness you were requested to submit court orders from a family
court regarding the date when the divorce became effective. I have reviewed
the court orders submitted. The court orders are not clear and only refer to
your marriage with the sponsor, whereas, our request was to submit court orders
confirming the date of divorce between sponsor and his first spouse. You were
requested again as per our letter dated March 28, 2006 to submit court orders. Your
lawyer's response however, does not address the issue of divorce between
sponsor and his first spouse and does not confirm a date when divorce took
place. I am therefore not satisfied that this is not a case of bigamy and that
your sponsor was legally free to marry you at the time of your marriage with
sponsor.
[7]
On
May 31, 2006, Mr. Amin initiated an appeal from the visa officer’s decision but
the Board was also not satisfied that his 1993 divorce was legally valid. The
Board’s decision was as follows:
[14] With respect to the legal
validity of the appellant’s divorce, the panel notes that the Lahore High Court
was at pains, first to pronounce only with respect to the appellant’s second
marriage; and second with respect to the validity of that second marriage
according to Sharia as opposed to the Pakistan Family Law Ordinance Act.
[15] This distinction is key because
it clarifies the focus of that Court’s concern. In the panel’s view, the
Lahore High Court was primarily concerned with the validity of the second
marriage, under Islamic law and was less concerned with the legal validity of
the divorce under the Pakistan Family Law Ordinance. The judge quotes, with
approval, the following paragraph from Allah Dad:
“… even if it is assumed that section 7
of the Family Laws Ordinance is a good law, the same cannot affect the validity
of a marriage contracted according to Shariah…’
And further,
“It is now evident that a notice of Talaq
to the Chairman is not mandatory under the Injunctions of Islam and any divorce
pronounced or written by husband cannot be ineffective or invalid in Shariah
merely because its notice has not been given to the Chairman…”
[16] The Pakistan judge then went on to declare the
appellant’s second marriage valid in Shariah.
[17] Thus, it would seem that in
relation to the Islamic law, the appellant’s second marriage is valid in
Pakistan, even though his divorce from his previous wife did not comply with
the statutory requirement and thus under the Pakistan Family Law Ordinance, was
void and of no effect. It is clear from the judge’s declaration that the judge
was not pronouncing the validity of the marriage under the Pakistan Family Law
Ordinance.
[18] The panel is of the view that
under the Pakistan Family Law Ordinance, upon marrying the applicant on the 15th
March 2002, the appellant would have two wives, his divorce not being in
conformity with section 7 of that Law. This is a circumstance that Canadian
law recognises as bigamy.
[19] The Canadian Immigration scheme
does not contemplate such a circumstance. Section 117(9)(c)(i) sets out the
applicable statutory provision as follows:
(9) Excluded relationships A
foreign national shall not be considered a member of the family class by virtue
of their relationship to a sponsor if
(c) the foreign
national is the sponsor’s spouse and
(i) the sponsor or the
foreign national was, at the time of their marriage, the spouse of another
person.
[20] Section 2 of the Regulations
is clear in its definition of marriage that “marriage” in respect of a
marriage that took place outside Canada, means a marriage that is valid both
under the laws of the jurisdiction where it took place and under Canadian law.”
[21] The appellant’s counsel argues
that in light of the pronouncement of the Lahore Court, a Canadian court should also recognise
the divorce as taking effect as of the 11th January 1994. The panel
does not agree with this position as there was no evidence before the panel
that Canadian courts recognise Shariah law or prefer Shariah to the Pakistani
statutory regime. The panel is of the view that what is required of the
appellant; given his failure to establish that Canadian Courts would recognise
a divorce pronounced according to Shariah law; is for him to establish clearly
and without equivocation that in the absence of registration with a local
arbitration council, his divorce was legally valid, under the applicable
Pakistan Law and that he had the capacity to marry the applicant when he
purported to do so on the 15th March 2002. In light of the above
analysis, the panel finds that the appellant has failed to do so.
[Footnotes omitted. Emphasis original]
II. Issues
[8]
Did
the Board err by failing to recognize the legal validity of Mr. Amin’s talaq
divorce?
III. Analysis
[9]
The
issue before the visa officer and subsequently before the Board was whether it
had been proven that Mr. Amin’s 1993 Islamic divorce was one which would be
recognized for all purposes in Canada. The Board was not satisfied that that
point had been clearly established on the evidence tendered. For the sake of
argument, I am prepared to accept that this is an issue of mixed fact and law
which should be reviewed on a standard of reasonableness: see Chieu v. Canada (Minister
of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 at para. 26
and Khosa v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 24 at para. 12.
[10]
In
order for Mr. Amin to sponsor his wife as a permanent resident, it was
necessary for him to prove that his first marriage had been legally dissolved.
This is a precondition to a family class sponsorship because of the requirement
in section 117(9)(c) of the Immigration and Refugee Protection Regulations,
SOR-2002/227, that the sponsor of a spouse not be, at the time of sponsorship,
married to another person. Accordingly, for Canadian immigration purposes,
polygamous marriages are not recognized.
[11]
The
evidence put forward by Mr. Amin to establish the fact of a valid Pakistani
divorce was found by the Board to be equivocal and, indeed, it was.
[12]
The
declaration given by the Pakistan High Court in Lahore is far from conclusive
on this point and, in my view, the Board was correct in its appraisal of that
decision. Judge Paracha seems to have been quite deliberate in pronouncing
that Mr. Amin’s 1993 talaq divorce was “effective in Shariah” and, therefore,
his second marriage was valid. However, other portions of that decision noted that
Mr. Amin’s talaq divorce was not registered under the Muslim Family Law
Ordinance (1961) until July 30, 2005 and became effective on that date. While
these observations appear somewhat incongruent, they may well be reconciled by
the fact that polygamous marriage is accepted under Shariah law or, as it was
put in Mr. Amin’s pleading to the Court:
That according to law as well as Islam
the defendant No. 1 was free to contract marriage with the plaintiff on the
date when he contracted marriage with the plaintiff because after expiry of 90
days a male is free to contract second marriage, even otherwise Qur’am Sunnah
has given a right to contract four marriages at one time whereas in the peculiar
circumstances of the case contracted second marriage with the plaintiff after
divorce of his first wife, thus he was legally free to contract marriage with
plaintiff on the said date.
[13]
What
is left unanswered in the evidence is whether Mr. Amin’s failure to comply with
the dictates of the Muslim Family Law Ordinance (1961) rendered his 1993 talaq
divorce invalid for other than religious purposes in Pakistan. On the
face of that Ordinance, it is apparent that a talaq form of divorce is not
“effective until the expiration of ninety days from the day on which notice… is
delivered to the Chairman” of the Arbitration Council. This point is confirmed
in the Divorce Certificate issued by the Arbitration Council to Mr. Amin and
which clearly stated that the 1993 divorce was made effective only on July 30,
2005. That Certificate goes on to state that “[t]he parties are now at liberty
to marry according to Muslim family law 1961”. I would add to this that there
is considerable judicial authority from England which
recognizes the significance of the statutory scheme for legally validating a
talaq divorce in Pakistan. In Quazi v. Quazi, [1979] 3 All E.R.
897 at page 917; [1980] A.C. 744 (H.L.) at page 825, Lord Scarman made the
point as follows:
The divorce became under Pakistan law effective not, as under
the classic Islamic law, on pronouncement of talaq but on the expiry of ninety
days, unless revoked, from the notice in writing to the chairman of the union committee.
That this is the law of Pakistan brooks of no doubt.
Also see: Fatima v. Secretary of State
for the Home Department, [1986] 2 All E.R. 32 (H.L.) per Lord Ackmer at
pages 35-36.
[14]
In
the face of the above pronouncements, and notwithstanding Ms. Lee’s capable
arguments, the Board’s conclusion that Mr. Amin had not proven the legal
validity in Pakistan of his 1993
religious divorce was reasonable and therefore unimpeachable on judicial
review.
[15]
It
was argued on behalf of Mr. Amin that there is Canadian jurisprudence which has
recognized the legal validity of foreign religious divorces and that the Board
erred by failing to apply that authority.
[16]
Mr.
Amin relies upon the Supreme Court of Canada decision in Schwebel
v. Ungar, [1965] S.C.R. 148, 48 D.L.R. (2d) 644 where the Court seems to have
recognized the validity in Canada of a Jewish rabbinical divorce. There are,
however, differences between the circumstances of that case and those which
arise here. The evidence in Schwebel was to the effect that such a
religious divorce was formally conducted before a Rabbi and was recognized by
the State of Israel. There is no indication given that any Israeli statutory
requirements were not met and, indeed, this seems to have been the only
available means of obtaining a divorce in Israel at that time.
Furthermore, the Court concluded its decision with the following note of
caution with respect to its precedential value:
The Court of Appeal of Ontario has treated these singular
circumstances as constituting an exception to the general rule to which I have
just referred. In the course of his reasons for judgment Mr. Justice Mackay has
thoroughly and accurately summarized and discussed the authorities bearing on
this difficult question and it would in my view be superfluous for me to
retrace the ground which he has covered so well. I adopt his reasoning in this
regard and agree with his conclusion that, for the limited purpose of resolving
the difficulty created by the peculiar facts of this case, the governing
consideration is the status of the respondent under the law of her domicile at
the time of her second marriage and not the means whereby she secured that
status.
[17]
Ms.
Lee also cited the Immigration Appeal Division decision in Bhatti v. Canada (Minister of
Citizenship and Immigration) [2003] I.A.D.D. No. 519, where the Board
recognized a talaq divorce for the purposes of a family class sponsorship.
[18]
The
problem with the Bhatti decision is that it does not clearly indicate
whether the talaq divorce in issue there had been registered in accordance with
the Muslin Family Law Ordinance (1961). On one reading, the decision suggests
that statutory compliance had been met in that case as can be seen from the
following passage:
7 In support of his position,
the appellant provided a letter from lawyer in Pakistan, a Statutory
Declaration and opinion letters from two family law lawyers in Toronto. The divorce deed executed
in June 1996 is an extra-judicial divorce in that it is a talaq or a divorce
under Muslin law. The letter from Samina Khan, who is a lawyer practicing
before the High Court in Islamabad and who acted for the appellant with respect
to his 1996 divorce, states that divorce in Pakistan is governed by the Muslim
Family Law Ordinance, 1961. The Muslim Family Law Ordinance, 1961 recognizes
the talaq form of divorce. In the lawyer’s view, the appellant’s divorce deed
met the substantive and procedural requirements of the law.
[Footnotes omitted]
[19]
There
are statements in the Bhatti, above, decision which are difficult
to accept. For instance, the Board interpreted section 22(1) of the Divorce
Act, R.S.C. 1985 c. 3 (2nd. Supp.), requiring that a foreign
divorce be granted “by a tribunal or other authority having jurisdiction”, as
being met by an extra-judicial divorce such as the Muslim talaq. As far as I
can tell from the record before me and from relevant legal authorities, the
pronouncement of talaq is nothing more than a unilateral declaration of divorce
made by the husband, usually in the presence of witnesses, and sometimes recorded
in a private divorce deed. Such a process is clearly insufficient to fulfill
the requirements of section 22(1) of the Divorce Act and, to the extent that
the Bhatti decision suggests otherwise, it is, with respect, wrong: see
Chaudhary v. Chaudhary, [1984] 3 All E.R. 1017 (Brit. C.A.).
[20]
I
would add that, for the purpose of applying domestic law, I have serious
reservations about the appropriateness of recognizing extra-judicial divorces
of the sort in issue here. The obvious intent of section 22(1) of the Divorce
Act was to require that some form of adjudicative or official oversight be
present before Canada will recognize a foreign divorce. This
requirement would be fulfilled by the process dictated by the Muslin Family Law
Ordinance (1961): see Quazi, above, at page 917 (All E.R.), page
825 (A.C.); and Chaudhary, above, at page 1025. The obvious purpose of
such oversight is to address important public policy issues which can arise out
of the domestic recognition of informal or religiously-based divorces. Many of
those concerns were identified in the following passage from Chaudhary,
above, at pages 1031 and 1032:
The essentials of the bare talaq are, as
I understand it, merely the private recital of verbal formula in front of
witnesses who may or may not have been specially assembled by the husband for
the purpose and whose only qualification is that, presumably, they can see and
hear. It may be, as it was in this case, pronounced in the temple. It may be,
as it was here, reinforced by a written document containing such information,
accurate or inaccurate, as the husband cares to insert in it. But what brings
about the divorce is the pronouncement before witnesses and that alone. Thus
in its essential elements it lacks any formality other than ritual performance;
it lacks any necessary element of publicity; it lacks the invocation of the
assistance or involvement of any organ of, or recognised by, the state in any
capacity at all, even it merely that of registering or recording what has been
done. Thus, though the public consequences are very different, the essential
procedure differs very little from any other private act such as the execution
of a will and is akin to the purely consensual type of divorce recognised in
some states of the Far East (see eg Ratanachai v Ratanachai (1960)
Times, 4 June, Varanand v Varanand (1964) 108 SJ 693 and Lee v Lau
[1964] 2 All ER 248, [1967] P 14).
In my judgment, and looking at the 1971
Act alone, such an act cannot properly be described as a ‘proceeding” in any ordinary
sense of the word, still less a ‘proceeding’ in what must, for the reasons
given above, be the restrictive sense of the word as used in the Act.
…
However, even if I am wrong in the view
that I take on this point, I agree entirely with the judge’s decision on the
second point, namely that to recognise the bare talaq divorce in the instant
case as effective here would be manifestly contrary to public policy.
[Per Oliver LJ]
[21]
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 the divorce and include an overarching requirement for due process and
fairness. This point was made by Lord Pearce in Indyka v. Indyka,
[1969] 1 A.C. 33 (H.L.) in the following passage at page 88:
I think, however, that our courts should
reserve to themselves the right to refuse a recognition of those decrees which
offend our notions of genuine divorce. They have done so when decrees offend
against substantial justice, and this, of course, includes a decree obtained by
fraud. But I think it also includes or should include decrees where a wife has
gone abroad in order to obtain a divorce and where a divorce can be said not to
be genuine according to our notions of divorce.
[22]
This
essential point was also made by Justice J. E. Fichaud in Orabi v. El Qaourd,
2005 NSCA 28, 12 R.F.L. (6th) 296, where the Court was asked to give
recognition to a divorce declaration issued to the husband by a Shariite
Canonical Council in Jordan. After a thorough review of the common law
concerning the recognition of foreign divorces, Justice Fichaud stated:
18 Mr. El Qaoud knew where Ms. Orabi
resided. Yet Mr. El Qaoud did not serve Ms. Orabi with notice of the divorce
proceeding. This was not a case where the respondent was difficult to locate,
avoiding service, or subject to an order for substituted service. The Jordanian
tribunal granted the divorce apparently without requiring any proof that Ms.
Orabi had been served with notice. In December, 2002, Ms. Orabi received her
couriered divorce decree, issued by a tribunal before which there was no role
for her participation, in a country to which she had no connection, after a
proceeding of which she received no notice. This divorce decree would affect
her status and corollary relief. This violates the principles of natural
justice. I would deny recognition of the Revocable Divorce Document on that
ground.
[23]
The
same concerns that were evident to the Courts in Orabi, above, Chaudhary,
above, and Indyka, above, arise in this case. In the result, I do not
agree that the apparently unilateral, extra-judicial declaration of divorce
made by Mr. Amin in Pakistan in 1993 is a form of divorce which meets
Canadian notions of genuine divorce and it cannot be recognized here.
[24]
It
was also argued on behalf of Mr. Amin that the failure by the Board to
consider whether his 1993 divorce could, by virtue of section 22(3) of the
Divorce Act, be recognized at common law was an error; in particular, it was contended
that the Board erred by failing to determine whether Mr. Amin or his first
wife had a real and substantial connection to Pakistan which could support the
1993 divorce.
[25]
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. The
real and substantial connection requirement is, rather, a further prerequisite
to the Canadian recognition of a foreign divorce to prevent forum shopping and
similar problems: see Indyka, above, per Lord Pearson at pages 111-112.
[26]
It
follows from the above that, for the purposes of section 117(9)(c) of the Immigration
and Refugee Protection Regulations, Mr. Amin’s first marriage was not
effectively dissolved until 2005 when the requirements of the Muslin Family Law
Ordinance 1961 were met. Because, under Canadian law, Mr. Amin was still
married to his first wife when he married for a second time, his application to
sponsor his second wife was statutorily barred. The after-acquired 2005
divorce decree does not overcome this statutory impediment: see Canada (Minister of
Citizenship and Immigration) v. Subala, (1997) 134 F.T.R. 298,
73 A.W.C.S. (3d) 315.
[27]
Counsel
for the Applicant indicated that there were certain religious impediments to
Mr. Amin remarrying his wife in Pakistan as a means of
overcoming the refusal of his sponsorship application. While that may be so,
there should be no impediment to a civil remarriage in Canada and presumably
Mr. Amin’s wife would be granted at least a visitor’s visa to enter Canada for that
purpose.
[28]
Having
regard to the foregoing, Mr. Amin’s application for judicial review is
dismissed.
[29]
The
parties did request an opportunity to propose a certified question and I will
allow ten days for that purpose. If the Applicant proposes a certified
question within that time, I will allow the Respondent a further three days to
respond.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
“ R. L. Barnes ”
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