Reasons and Decision Motifs et décision

Transcription

1 Reasons and Decision Motifs et décision SPONSORSHIP Appellant(s) SALIM ISMAIL LIMBADA Appelant(e)(s) Respondent The Minister of Citizenship and Immigration Intimé(e) Le ministre de la Citoyenneté et de l Immigration Date(s) and Place of Hearing June 4, 2012 July 26, 2012 Toronto, Ontario Date(s) et lieu de l audience Date of Decision July 26, 2012 Date de la décision Panel Harvey Savage Tribunal Counsel for the Appellant(s) Saidaltaf Patel Barrister and Solicitor Conseil(s) de l appelant(e) / des appelant(e)(s) Counsel for the Minister Jennifer Bromley Conseil du ministre

2 ORAL REASONS FOR DECISION [1] These are the reasons for the decision of the Immigration Appeal Division (IAD) pertaining to the appeal pursuant to section 63(1) of the Immigration and Refugee Protection Act (the IRPA) of Salim Ismail Limbada (the appellant), whose sponsored application for a permanent resident visa made by his spouse, Fehmidabibi Limbada (the applicant) was refused on the basis that the applicant is not a member of the family class. [2] The visa officer was satisfied that the appellant and applicant are not in a genuine marriage and that it was entered into primarily for purposes of acquiring status or privilege under the IRPA within the meaning of section 4(1) of the Immigration and Refugee Protection Regulations (the Regulations). Even though this decision was really made under the previous section, which was section 4, the assessment of the decision is being made in accordance with section 4(1). [3] At issue in this case is whether the applicant falls within the class of persons described in section 4(1) of the Regulations. In other words, in the visa officer s view, this is not a genuine marriage and was entered into primarily for the purposes of acquiring status or privilege under IRPA. Background [4] The appellant is a 41-year-old citizen of Canada. The applicant is 23. She was born in India and resides there now. The appellant and applicant were married in India on March 12, The appellant returned to Canada the next morning following the wedding. The visa officer found that the appellant, as indicated, is not the applicant s spouse because of section 4 of the Regulations which then read: Bad faith 4. For the purposes 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

3 2 or adoption is not genuine or was entered into primarily for the purpose of acquiring any status or privilege under the Act. [5] The only difference now under the current section 4(1) of the Regulations is that instead of being conjunctive, it is now disjunctive. So the visa officer only has to find on one of the grounds or the appellant has to demonstrate both grounds. [6] In considering whether a marriage is genuine and whether the bad faith section of the Regulations applies to it, the IAD looks at a number of similar factors. However, these factors are not identical in every appeal as the genuineness of the marriage can be affected by different factors in every appeal. The factors considered can include, but are not limited to the intent of the parties to the marriage; length of the relationship; amount of time spent together; conduct at the time of meeting, engagement and/or the wedding; behaviour subsequent to the wedding; knowledge of each other s relationship histories; levels of continuing contact and communication; provision of financial support; knowledge of and sharing of responsibility for the care of children brought into the marriage; knowledge of and contact with extended families of the parties; and knowledge about each other s daily lives. 1 [7] The visa officer expressed the following main concerns: The incompatibilities were too serious years age difference and difference in the marital status. The applicant was not aware of the reason why the appellant s marriage broke down. The applicant knew few details of the appellant s everyday life. The marriage was arranged in haste and the appellant returned to Canada the same day. There was no evidence of financial background or of a concrete plans other than living in Canada. 1 Chavez, Rodrigo v. M.C.I. (IAD TA ) Hoare, February 11, 2005.

4 3 [8] There are two contravening themes at play in this appeal. On the positive side is a culturally-arranged marriage between the fathers who are good friends, coming from the same village; a simple ceremony; evidence of contact, including two post-marriage visits by the appellant, the first for almost two months and the second for three and one-half months; and the birth of the couple s daughter Zainab on December 9, [9] On the negative side are the concerns listed by the visa officer and those arising at the hearing. [10] Various decisions of this Board have discussed the cogent evidence that a child of a relationship presents for the bona fides of that relationship. In the 2007 Aujla 2 decision, the panel stated: In my view, when there is a Child of the Marriage, especially without an issue regarding paternity, this is a salient factor to be taken into account in favour of the Appellant s case. Absent exceptional circumstances to prove otherwise, a reasonable person accepts this evidence as proof of a genuine spousal relationship [11] A recent decision of the Federal Court of Canada named Gill 3 puts in a straightforward manner the rationale for the evidentiary presumption that having a child of the marriage has on the bona fides of the relationship. Justice Barnes said at paragraph 8 that: The Board was correct in acknowledging that, in the assessment of the legitimacy of a marriage, great weight must be attributed to the birth of a child. Where there is no question about paternity, it would not be unreasonable to apply an evidentiary presumption in favour of the genuineness of such a marriage. There are many reasons for affording great significance to such an event not the least of which is that the parties to a fraudulent marriage are unlikely to risk the lifetime responsibilities associated with raising a child. Such a concern is heightened in a situation like this where the parents are persons of very modest means. [12] However, I also recognize there are also other opinions on the relevance that the existence of a child plays in evaluating the bona fides of a relationship. 2 Aujla, Sidhu v. M.C.I. (IAD VA ) Shahriari, April 17, 2007, paragraph Gill v. Canada (Citizenship and Immigration) 2010 FC 122, Barnes, J.

5 4 [13] It is important to consider a more complete range of views. For instance, in the Yu 4 decision, where Member Mungovan held at paragraph 68 that: While typically the birth of a child is an important factor in considering whether a marriage is genuine, the existence of a child is not determinative:... While not determinative, cases such as Ma v. Canada (Minister of Citizenship and Immigration) and others have stated that there is a presumption of genuineness of the marriage, however, as in Ma, notwithstanding that a child is born of their union, the relationship can be found not to be genuine, which is the case in this appeal. [14] In Ma 5 which was upheld by the Federal Court in May 2010, the IAD held that for the applicant s pregnancy, it is only one of the factors taken into account in the analysis of the genuineness of the relationship. [15] The appellant has submitted several decisions in which the IAD gave considerable weight to the fact that a child was born of the marriage. In most of those cases the child was born before the refusal and the child s paternity was not contested by the Minister. The cases of Kaler 6 and Oucherif 7 are more relevant since in both cases the pregnancy happened after the refusal and the birth of the child was expected after the hearing. [16] In the presence of clear, cogent and convincing evidence of a genuine relationship not entered into primarily for immigration purposes, the fact of a child of a marriage puts an appeal over the top. However, if the evidence is not supportive of a genuine non-immigration motivated relationship, then the fact of a child simply goes to overall weight. [17] Without question, problems have been identified in the evidence and the Minister has addressed them in submissions. As the Minister submitted, the applicant and appellant provided different dates and circumstances as to when they first met -- the appellant saying January 2009 in his neighbourhood and the applicant saying the end of January 2009 when they saw each other 4 Yu, Liming v. M.C.I. (IAD TA ) Mungovan, May 16, Ma v. Canada (Minister of Citizenship and Immigration), 2010 FC 509, Hilling, February 19, Kaler, Kamaljeet Kaur v. M.C.I. (IAD VA ) Workum, October 23, Oucherif, Ichrak v. M.E.I. (IAD MA ) Barazi, October 27, 2005.

6 5 at a wedding in the neighbourhood. While the elaboration as to where they met differs, what is consistent here is that both applicant and appellant agreed as to the timeframe and that it preceded the marriage date. [18] The Minister submitted that there is some discrepancy as to when the applicant became pregnant, but in the end both applicant and appellant were only both speculating since it is difficult to pin-point precisely the actual moment or even day of conception. The applicant and appellant were both consistent that conception occurred during the appellant s visit to India from mid-march The sonographic report confirms that the applicant s last previous menstrual period was March 3, 2010 and the evidence also confirms that the appellant s arrival in India is in the middle of March In addition, a Birth Certificate 8 was filed that Zainab was born on December 9, 2010 and both applicant and appellant are listed as the biological parents. There is a copy in the file of the notarized certificate bearing the seal of a hospital. The Minister has brought no evidence to challenge its authenticity nor has she so suggested. [19] There are some differences in recollection between the parties such as their differing estimates as to when conception might have occurred. They also differed regarding who accompanied them to the airport after their wedding. The appellant said it was the applicant s elder sister. The applicant initially said it was her brother, but then clarified under reexamination that it was both her brother and her sister. The appellant said that it was his cousin Banu who first told him of Zainab s birth, whereas the applicant said it was her sister Rashida. In re-examination, the applicant clarified that there were a number of persons present at the birth; one of them being a cousin known as Banu. [20] The Minister submitted that the appellant and applicant provided different answers as to why the appellant preferred the applicant out of other proposed matches in However, they both said that it was because the applicant appeared to be more religious, which is also the reason provided by the appellant for not marrying the applicant s older sister. 8 Exhibit A-1, page 16.

7 6 [21] The Minister submitted that this was a vague response. However, the applicant also indicated in her application that she had completed a religious studies program and she confirmed this on re-examination at the previous sitting and offered as well that she read religious books. In the circumstances, the parties have provided a reasonable explanation which underlies the appellant s preference for the applicant and why he did not marry her older sister. [22] The marriage was arranged in haste and the reasons for the three-week delay from the engagement were not satisfactorily addressed according to the Minister. Both parties gave as an explanation that the appellant was awaiting his divorce judgment to come from Canada. In fact, the Certificate of Divorce 9 in the file confirms that the divorce took final effect on March 7, 2009, and that was three days before the marriage. The parties also testified that the appellant s vacation leave was expiring so he had to leave later that day into the early morning of the wedding. [23] Culturally-arranged marriages need to be assessed through the lens of cultural norms in the country in which the marriage took place. India is an example where marriages can be hastily arranged for a variety of legitimate circumstances which makes sense in that culture, but not necessarily to Western views. [24] In the Federal Court decision is Elahi, 10 Justice Mosley addressed this issue: [9] It is well-established that when assessing genuineness of arranged marriages, in particular, the IAD must be careful not to apply Western conceptions of marriage to the case before it. Rather, the bona fides should be evaluated within the cultural context in which it took place. Gill v. Canada (Minister of Citizenship and Immigration), 2010 FC 122 (CanLII), 2010 FC 122, 362 F.T.R. 281 at para. 7; Abebe v. Canada (Minister of Citizenship and Immigration), 2011 FC 342 (CanLII), 2011 FC 341 at paras This is because reading By its very nature, an arranged marriage, when viewed through a North-American cultural lens, will appear non-genuine 9 Record, page Elahi v. Canada (Citizenship and Immigration), 2011 FC 858.

8 7 [25] I apply the reasoning in the Elahi decision to the facts in front of me. The explanations offered by the parties reasonably address the concerns of the visa officer and of the Minister, given the cultural context in which the marriage occurred. [26] The Minister submitted that a concern was that the applicant did not know why the appellant s marriage failed, but the appellant and applicant were consistent on the fact that the appellant s ex-wife made more money and that this was a factor in the breakdown of the marriage. [27] The fact that the applicant did not know all the details of the appellant s marriage breakdown should not draw an adverse inference. She was commenting on something that preceded her own marriage. It was not necessary for her in those circumstances to have been more precise than she was in her recollection. [28] The 17-year age gap is not the kind of incompatibility on its own which should render this marriage non-genuine and again I refer to the Elahi decision in Mr. Justice Mosley s comments. [29] The applicant testified that her parents had not looked previously for a match for her, whereas as the interview at the visa office she said they had been looking for two years. She said at the hearing that she did not say that. [30] It appears that this is an internal inconsistency in her evidence. That there were some inconsistencies and some discrepancies are not disputed, even while some had been reasonably explained through testimony. However, do they constitute exceptional circumstances which rebut the presumption which a child of a marriage confers on the genuineness of that relationship? I find not on the facts of this case. The couple has resided for lengthy periods together in India on two visits, almost six months in total. Much of their testimony has in fact been consistent. They still remain in contact, are still married and care for their child Zainab more than three years after their marriage. They have filed photographs with both them and Zainab and the photographs appear to be natural.

9 8 [31] In light of all the above on a balance of probabilities, I conclude that the marriage is bona fides and not primarily for the purpose of enabling the Applicant to immigrate to Canada. I allow the appeal. [edited for grammar and syntax] NOTICE OF DECISION The appeal is allowed. The officer's decision to refuse a permanent resident visa is set aside, and an officer must continue to process the application in accordance with the reasons of the Immigration Appeal Division. Harvey Savage Harvey Savage August 15, 2012 Date Judicial Review Under section 72 of the Immigration and Refugee Protection Act, you may make an ap plication to the Federal Court for judicial review of this decision, with leave of that Court. You may wish to get advice from counsel as soon as possible, since there are time limits for this application.