Docket: IMM-3916-13
Citation:
2015 FC 36
Ottawa, Ontario, January
12, 2015
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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MOHAMMAD MIAH AND
SUMAYA JAHAN
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review by Mohammad
Miah [Mohammad or the Applicant], pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act], of the
decision of Citizenship and Immigration Canada [CIC] dated May 22, 2013
refusing his application for permanent residence from within Canada under the
spouse or common-law partner in Canada class [the spousal application] because
it was not satisfied that Sumaya Jahan [the sponsor or the co-Applicant] was
divorced from her former husband Shuvo Kumar Das at the time of her marriage to
the Applicant. Mr. Miah and Ms. Jayan will be collectively referred to herein
as the Applicants.
[2]
The Applicant is seeking an order of certiorari
to quash the decision and an order of mandamus compelling the Respondent
to reconsider the spousal application.
[3]
I allow the application for the reasons that
follow below.
II.
Background
[4]
The sponsor had been married twice before –
first to Mr. Das on January 22, 2002 whom she claims she divorced on August 20,
2005 and second to Mohammad Shajedur Rahaman on January 19, 2007 whom she
divorced on February 25, 2010. Both of the sponsor’s prior marriages took place
in Bangladesh.
[5]
The Applicant is a citizen of Bangladesh. The Applicant and the sponsor met on June 17, 2008 and began cohabitating in Toronto, Ontario on September 19, 2008. They participated in a marriage ceremony on March
12, 2010 and the marriage was registered in Ontario on March 30, 2010. They had
a child, Tashnuba Jannat Miah, while residing in Canada on September 11, 2012.
[6]
Pursuant to paragraph 125(1)(c) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [the Regulations],
in order to be eligible to sponsor the Applicant, the sponsor was required to
show that she was not still married to either Mr. Das or Mr. Rahaman at the
time of the marriage to the Applicant. Only the divorce in the marriage to Mr.
Das is in dispute.
[7]
During the sponsor’s second marriage to Mr.
Rahaman, she tried to sponsor him for permanent residency in the spouse or
common-law class, but the application was withdrawn before CIC rendered a
decision.
[8]
The Applicant submitted the spousal application
on May 23, 2011, with the sponsor providing a sponsorship undertaking on his behalf
on the same date. In the sponsor’s application to sponsor the Applicant, she
disclosed her marriage to Mr. Rahaman, but not her marriage to Mr. Das.
[9]
It was noted by CIC that the sponsor’s divorce
to her first ex-spouse, Mr. Das, was in question.
As such, both the Applicant and his sponsor were scheduled for a spousal
interview.
[10]
When interviewed by a CIC officer on May 30,
2011, the sponsor indicated that she had not disclosed her first marriage
because she had previously provided that information when she had applied to
sponsor Mr. Rahaman and no longer had any evidence of the divorce because it
had been given to the Immigration Refugee Board when she made her refugee
claim. She further indicated during the CIC interview that she had not produced
any divorce papers when she attempted to sponsor Mr. Rahaman, but that she had
submitted an affidavit relating to her divorce from Mr.
Das [the Divorce Affidavit].
[11]
During the CIC interview, in answer to questions
the sponsor indicated the following about her first marriage to Mr. Das:
- It was a Muslim ceremony, though not done in the “proper Muslim way”;
- It had been performed by a Kazi or marriage court;
- The marriage was registered by a Kazi even though Mr. Das was a
Hindu and did not convert to Islam; and
- Divorce by
affidavit is all that is required in Bangladesh.
[12]
During the May 30, 2011 interview, the CIC
officer advised that the sponsor and the Applicant were required to provide an
original copy of the sponsor’s divorce certificate from Mr. Das and indicated
to them that it would be sent overseas for authentication.
[13]
On June 8, 2011, Applicants provided the Divorce
Affidavit as evidence of the sponsor’s divorce from Mr. Das. The following
facts are noted in the Divorce Affidavit:
- Mr. Das was of the Hindu faith;
- The sponsor is of the Islamic faith;
- The sponsor’s marriage to Mr. Das was performed at Notary
Public Registry No 80 in Bagerhat, Bangladesh;
- Mr. Das left the sponsor and she does not know his whereabouts;
and
- The Divorce Affidavit
bears the office seal of Rozinaa Aketer of the Bagerhat Court.
[14]
The Divorce Affidavit was ultimately forwarded
by CIC to the Dhaka, Bangladesh visa office for verification. The Dhaka visa
office responded in February 2012 and provided the following information
regarding the legal requirements for marriage and divorce in Bangladesh:
- A Muslim girl cannot marry a non-Muslim man under Muslim law,
but the Special Marriage Act, 1872 allows for interfaith marriages,
which would be evidenced by a certificate from the registrar;
- The Special Marriage Act, 1872 does not provide for
“court marriages”;
- Interfaith marriages can only be registered by a special
marriage registrar and can never be registered by a Kazi;
- An affidavit of marriage is not valid evidence of a marriage
unless registered by a court; and
- If one is issued
a Nikah Nama, both a Talaq Nama and registration of the divorce must be
registered in the Marriage and Divorce register office are required for a
divorce and an affidavit would not suffice.
[15]
The Dhaka visa office verified the Divorce
Affidavit and confirmed that the affidavit does not suffice as per the
Bangladeshi law described below:
Under section 2(i)
of the Muslim Marriage Act, 1939, whereas the whereabouts of the husband
are not known for a period of four years, the wife is entitled to get a decree
of dissolution of her marriage. In that case notice to be served on heirs of
the husband.
•The names and addresses of the persons who would have been
heirs of the husband under Muslim law on the date of filing shall be stated.
•Notice of the suit shall be served on such person and such
persons shall have the right to be heard in the suit.
•Provided that paternal uncle and brother of the husband, if
any, shall be cited as party even if he or they are not heirs.
[16]
On February 7, 2013, the CIC officer informed
the Applicants that, based on the information received from the “mission abroad,” the Divorce Affidavit was not
sufficient to demonstrate that the sponsor was divorced from Mr. Das when she
married the Applicant and therefore, that it appeared that Mr. Miah was
inadmissible under section 125(1)(c) of the IRPA. She gave the Applicants
an opportunity to respond to provide any information they would like considered
indicating as follows:
Due to the above submission, it appears that
you are inadmissible under R 125(1)(c) (excluded relationships) of the Immigration
and Refugee Protection Regulations as your sponsor’s first divorce
is invalid.
[…]
Before a decision is made in this matter, you
have the opportunity to provide any information you would like to be
considered. […]
If you need more than 30 days to provide the
information/documents requested, please write to this office and explain why
and how much more time you require.
[17]
The Applicant requested an extension of time on
February 25, 2013 to obtain further information to clarify the officer’s
concerns, which was granted. In the interim, the Applicants changed counsel and
their new counsel responded to the officer’s letter on March 7, 2013 indicating
that the sponsor’s divorce from Mr. Das was not done properly and that he would
be filing a divorce application before the Ontario Superior Court of Justice.
The Applicant’s counsel requested that CIC hold the file until they had
obtained the divorce certificate.
[18]
On May 14, 2013 the CIC officer denied the Applicants’
request to hold the file until the sponsor received the divorce certificate,
indicating that a divorce document obtained at that time would not be a factor
in her decision. On May 22, 2013, the CIC officer refused the spousal
application because she found that the sponsor was married to Mr. Das at the
time of her marriage to the Applicant, thereby disqualifying the Applicant
under section 125(1)(c) of the IRPA.
[19]
On the return of the application on September
18, 2014, it was acknowledged by the Applicants that their position had been
compromised by their new counsel’s statement that the divorce from Mr. Das was
not done properly and that he would be filing a divorce application before the
Ontario Superior Court of Justice to rectify the matter.
[20]
The judicial review application was adjourned to
permit the Applicants to file additional evidence to demonstrate that their
former solicitor was incompetent or negligent, thus resulting in a denial of
natural justice pursuant to the Federal Court Procedural Protocol of March 7,
2014: Allegations Against Counsel or Other Authorized Representatives in
Citizenship and Immigration and Protected Person Cases before the Federal
Court.
[21]
The Applicants filed two further affidavits. The
first was from their former counsel. He deposed that he was told by the Applicants
that they had received a letter from CIC advising them that the “paperwork” to
prove the sponsor’s divorce from Mr. Das was not properly done. He states that
he had not been advised by the sponsor that the divorce from her first husband
was invalid. She told him that she had divorced her first husband and that she
had provided the paperwork.
[22]
The former counsel advised that if there was a
problem with the documentation, the sponsor could apply for a divorce order in
the Ontario Superior Court. He was instructed to do so. On this understanding,
he informed the officer that the divorce with Mr. Das was not performed
properly and that he would be proceeding with a new divorce application on behalf
of the sponsor in the Ontario Superior Court.
[23]
He further deposed that had he known the real
issue was whether the sponsor’s divorce from her first husband was valid, he
would have advised the Applicants to obtain advice from a lawyer from Bangladesh to prove that the divorce was valid.
[24]
The second affidavit was filed by the sponsor
which contained an opinion letter from a Bangladeshi lawyer which provided
that:
- The sponsor’s first marriage was illegal and void because it
was an interfaith marriage;
- Even though the sponsor was married in a Muslim ceremony, she
was not married under Muslim law and thus the Muslim Marriage Act
of 1939/1961/1974 and other laws do not apply to her marriage;
- The sponsor and her first husband were not issued with the
“Nikah Nama”, and thus a Talaq Nama is not required to effect a divorce;
- The sponsor was married under a civil law, but the marriage was
not covered under the provisions of the Special Marriage Act, 1872
(Hindu-Muslim Marriage) as the marriage was not registered. The civil
marriage is also defective and void; and
- The sponsor’s
registration of the Separation/Divorce affidavit on August 24, 2005 was
sufficient to terminate her previous Marriage Affidavit/agreement and
affect her divorce/separation from Mr. Das.
III.
Issue
[25]
The issue in this matter is whether the Applicants’
former solicitor was incompetent or negligent in his reply to the officer that
the sponsor’s divorce from Mr. Das was not done properly and that the sponsor
proposed to rectify the situation by obtaining a divorce in the Ontario
Superior Court, and if so whether this resulted in a denial of natural justice.
IV.
Standard of Review
[26]
The Court in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 held that it was not necessary for reviewing
courts to engage in a full standard of review analysis where the appropriate
standard of review is already well-settled by previous jurisprudence.
[27]
Correctness is the appropriate standard of
review for issues of natural justice and procedural fairness (Mission
Institution v Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339
at para 43.
V.
Analysis
[28]
The guiding jurisprudence with respect to lawyer
incompetence and natural justice was succinctly described by Justice
Teitelbaum in Shirvan v Canada (Minister of Citizenship and Immigration),
2005 FC 1509, 143 ACWS (3d) 1098 at para 20 as follows:
[20] The Applicants recognize that the
test for incompetent counsel is very high. They submit that the party making the
allegation of incompetence must show substantial prejudice to the individual,
that prejudice must flow from the actions or inaction of the incompetent
counsel, and that the prejudice must bring about a miscarriage of justice (R.
v G.D.B., 2000 SCC 22 (CanLII), [2000] 1 S.C.R. 520; Strickland v
Washington, 446 U.S. 668 (1984), per O'Connor J.; Shirwa v Canada
(M.C.I.) 1993 CanLII 3026 (FCA), [1994] 2 F.C. 51 (T.D.); Sheikh v Canada
(M.C.I.) [1990] 3 F.C. 238 (C.A.); Tchiegang v Canada (M.C.I.), 2003 FCT
249; Robles v. Canada (M.C.I.), 2003 FCT 374). It must be shown that there is a
reasonable probability that, but for the counsel's unprofessional errors, the
result of the proceeding would be different (Olia v Canada (M.C.I.) 2005 FC 315 (CanLII)).
[29]
I am satisfied that the officer could rely upon
the Applicants’ former counsel statement that the sponsor’s divorce from Mr.
Das was not done properly. On that basis, there is no possible challenge to the
officer’s conclusion that the sponsor was ineligible to sponsor the Applicant
because her marriage to him was invalid, as she would have been married to Mr.
Das at the time of her marriage to the Applicant.
[30]
The officer was also correct in the decision to
refuse to grant a further extension to the Applicant for the purpose of the
sponsor obtaining a divorce in Canada. A divorce from Mr. Das after the
marriage would serve no purpose to restore the validity of her marriage to the Applicant
or otherwise rectify her application to sponsor the Applicant.
[31]
The Applicants argue that their former lawyer
was incompetent in his communications with the CIC officer and the advice he
provided them to file for a new divorce in Ontario. As a result they submit
that his conduct resulted in a denial of natural justice by causing their sponsorship
application to be irrevocably terminated with no possibility of renewal. I
agree.
[32]
It is clear from the advice of the former lawyer
to the Applicants that he had completely misunderstood the issues and solutions
required to service their legal needs. His advice to the sponsor to obtain a
divorce in Ontario, and to so advise the officer of his client’s intention do
so and that the sponsor’s divorce from Mr. Das was not done properly, was not
only completely incorrect, it was fatal to their application.
[33]
In his affidavit, the former lawyer acknowledges
that he was not advised by the sponsor that the divorce from her first husband
was invalid. Nevertheless, he somehow proceeded to communicate to the officer
that the sponsor was not divorced from Mr. Das, resulting in the rejection of
the sponsorship application. Under normal circumstances, a lawyer familiar with
immigration law would have recognized the nature of the issue faced by the
sponsor. If not a regular area of practice, the lawyer nonetheless should have
declined to act or was required to investigate and
properly understand the Canadian requirements for a spousal sponsorship in
relation to the information being provided by his clients.
[34]
Had he done so, the former lawyer would have
determined that the issue was not that the divorce was not properly effected,
but rather that CIC was not satisfied that the divorce was valid, and proceeded
from there. By his own admission, he would have advised the Applicants to
obtain advice from a lawyer in Bangladesh to prove the divorce was valid if he
had recognized the nature of the problem. Instead, he incorrectly acknowledged
the invalidity of the divorce of Mr. Das, thereby bringing the application to
an immediate end.
[35]
The Respondent raises a number of issues, mostly
with respect to the brevity of the former lawyer’s letter, suggesting that he
acted on the information provided by the Applicants and did what he was asked
to do. There is no suggestion however that he was misinformed by the Applicants,
the problem apparently being his failure to properly investigate what issues
arose in his clients’ dealings with the CIC.
[36]
From the fact that the Applicants accepted his
advice to file for a divorce in Ontario, it would appear that they did not
fully comprehend the nature of the officer’s objection to their application.
However, that does not excuse a lawyer from discharging his first task, which
is to review and carefully understand the nature of the problem raised by the
client in order that appropriate advice can be provided. It is clear that he
had no understanding of the issue facing his clients’ sponsorship application.
In the circumstances, I conclude that his conduct did not meet the standards of
the legal profession in the advice provided concerning their immigration
sponsorship application.
[37]
I also conclude that the Applicants sustained
substantial prejudice resulting from the actions of their former lawyer. They
are a married couple with a young daughter whose sponsorship application was
denied. There appears little chance that a new application can be made due to
constraints imposed by subparagraph 125(1)(c)(i) of the Regulations.
Nor is it evident that the Applicants are entitled to any special humanitarian
and compassionate consideration which might otherwise apply. In any event, I
consider the rejection of the sponsorship application sufficient to constitute
substantial prejudice.
[38]
I am also of the view that there is a
“reasonable possibility” that the result in their application would have been
different. The sponsor has obtained evidence in the form of the affidavit from
the Bangladeshi lawyer which undermines the preliminary assumptions made by the
officer that the marriage to Mr. Das was not terminated by divorce as claimed.
VI.
Conclusion
[39]
The application is allowed. The officer’s
decision is set aside and the Applicant’s application for permanent residence
is to be referred to a different CIC officer for a re-determination. No
certified questions were proposed for appeal and none arise.
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