Ottawa, Ontario, May 16, 2007
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
and
AND IMMIGRATION
[1] There has been a scandal in the family. There is a difference of opinion as to exactly what that scandal was. No matter. The decision of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, upholding a visa officer’s decision to refuse a visa to Ms. Habib’s husband must be set aside.
[2] This is one of those cases where it is better to set out the legal context, before recounting the facts. Mr. Syed resided in Canada for a number of years in the 1990s. He was not then married to Ms. Habib. He was married to another. His refugee claim was unsuccessful. Although he eventually returned to Pakistan voluntarily, he had not done so within the legal delays. Section 52 of the Immigration and Refugee Protection Act (IRPA) provides that a foreign national in that situation may not return to Canada unless authorized by an officer or in other prescribed circumstances.
[3] Ms. Habib also originates from Pakistan. Her refugee claim was successful and she became a permanent resident. Thereafter she returned to Pakistan to marry Mr. Syed. She then attempted to sponsor him, but the visa officer refused his application for landing.
[4] She appealed to the IAD pursuant to subsection 63(1) of IRPA. As a person who had filed an application to sponsor a foreign national as a member of the family class she was entitled to launch that appeal. However, as mentioned above, she was unsuccessful.
[5] The decision of the visa officer is, insofar as it is based in law, not contested. Rather, the issue is whether her appeal should be granted on humanitarian and compassionate considerations. It is a condition precedent thereto that Ms. Habib’s husband falls within the family class. Under section 65 of IRPA, the IAD cannot consider humanitarian and compassionate matters unless satisfied the foreign national is a member of the family class.
[6] In determining whether Mr. Syed was such a member, the IAD had to consider sections 4 and 5 of the Immigration and Refugee Regulations which provide among other things that the foreign national shall not be considered a spouse if the marriage “was entered into primarily for the purpose of acquiring any status or privilege under the Act.” Furthermore, a foreign national shall not be considered a spouse if at the time of their marriage he was married to someone else.
[7] It is common ground that the appeal of the visa officer’s decision is to be considered by the IAD de novo (Bui v. Canada (Minister of Citizenship and Immigration), 2001 FCT 144 at paragraphs 19-22).
BACKGROUND
[8] Ms. Habib came to Canada has a refugee claimant in 1994, and was granted that status a few months later. She was accompanied by one daughter. Her husband, another daughter and a son remained in Pakistan.
[9] Ms. Habib had very little English and was at a loss as to handle the paperwork to support her refugee claim, and the other paperwork necessary to survive in Canada. Her brothers, who were in Pakistan, got her in touch with their old childhood friend, Sajjad Syed. Mr. Syed was here but his wife was still in Pakistan.
[10] Although he helped her out, and they were on friendly terms, they both vehemently insist that the relationship was strictly platonic.
[11] Ms. Habib was able to sponsor her husband and two children who had remained in Pakistan. However, there were problems on their arrival in 1998. Although it was her husband who called Mr. Syed to convene a meeting of reconciliation, he then took the position that his wife and Mr. Syed were in a romantic relationship. He also called Mr. Syed’s wife in Pakistan to say they were having an affair.
[12] Mr. Syed returned to Pakistan to try to patch things up and has not been back. As it turns out, both Ms. Habib and Mr. Syed divorced. To hear Ms. Habib tell it:
I told my brothers about all my problems and they suggested that I marry Sajjad. Both of our lives have been touched by scandal because of my first husband’s declarations; Sajjad was contacted and we began talking again around 2002. He proposed marriage in May 2002. I told him I would have to consult my family; all my family agreed to this marriage. They know what a difficult time that I have had in exile and the sacrifices I have made for my children…This type of arranged marriages is a normal way of doing things in Pakistan. I accept this as a way to do things and I wish to start my married life as a wife.
MR. SYED’S INTERVIEW BEFORE THE VISA OFFICER
[13] There was some focus on Mr. Syed’s employment history in Canada. He was certainly paid under the table, and at one point was on social welfare. It may be that he was also collecting welfare while he was working. The officer made a note to file that Mr. Syed may be inadmissible due to failure to comply with portions of Canadian legislation outside of IRPA. He saw no compelling reasons for issuing the visa as Mr. Syed was “a failed refugee claimant who took advantage of and evaded Canadian social structures during his time in Canada.” However true that may be, that was not the issue before the IAD. Those issues, it must be emphasized, may be relevant - but at a later date. The issue before the IAD, and the issue before me, is whether Mr. Syed is a member of the family class. Humanitarian and compassionate considerations, or facts that might diminish his chances of successfully raising them, only become relevant once his membership in the family class is established.
[14] To support Mr. Syed’s contention that he knew Ms. Habib when they were both in Canada, he produced some photos taken at that time. The visa officer appears to have formed the impression that the photos suggested a romantic, not a platonic, relationship. If that were so, which is vehemently denied, if anything it would strengthen the applicant’s case that the relationship is genuine.
[15] Mr. Syed also produced his divorce certificate which was not questioned by the visa officer, but which became a major issue before the IAD.
THE IAD HEARING
[16] The IAD was of the view that both Mr. Syed, at his interview, and Ms. Habib, at the hearing, contradicted themselves several times and were not trustworthy witnesses. There was some contradiction as to who made the first contact. The IAD questioned the nature of the relationship they had in Canada - not whether or not they had a relationship, but whether or not it was romantic. There was some confusion raised by Mr. Syed’s certificate of divorce in that apparently he went back to Pakistan in January 1999, while the certificate seems to suggest that he filed for divorce in December 1998. There was also some confusion on Ms. Habib’s part as to the amount of the dowry.
[17] It must be borne in mind that contradictions have to be relevant to the point at hand which is whether or not this was a marriage primarily for the purpose of acquiring a status or privilege under IRPA (Awuah v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1873 (QL); Owusu v. Canada (Minister of Citizenship and Immigration), 2006 FC 1195). One cannot simply conclude that because the marriage was arranged its prime purpose was to acquire status or privilege under IRPA. Certainly a marriage to avoid scandal has another purpose altogether.
[18] The contradictions, if they were any considering that husband and wife were interviewed by different people at different times and in different places, are inconsequential. It was Ms. Habib’s brothers who gave each pertinent contact information about the other. It does not matter who made the first call. The confusion about the amount of the dowry is understandable. Although it was given in rupees, it was clear that Ms. Habib was thinking in Canadian dollars. She said that the dowry was $500 CDN. All that can be said is she may have not kept up on exchange rates.
[19] As to the divorce certificate, Mr. Syed had not been questioned thereon. The evidence was that in January 1999 he went back to Pakistan in an effort to patch things up with his wife. He was not asked whether she had already instituted divorce proceedings. The fact that he is first named in the proceedings does not necessarily mean he was the plaintiff. Furthermore, if he lied to avoid scandal in that he had instituted divorce proceedings before returning to Pakistan, this would not detract from the genuineness of his relationship with Ms. Habib. The conclusions of the IAD were not inferences from the evidence, they were completely speculative and as such patently unreasonable.
[20] There is no question of general importance for certification.
ORDER
THIS COURT ORDERS that the application for judicial review is granted. The matter is sent back for redetermination before another panel of the Immigration Appeal Division of the Immigration and Refugee Board.
“Sean Harrington”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5262-06
STYLE OF CAUSE: Mussarat Habib
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montreal, Quebec
AND ORDER: HARRINGTON J.
APPEARANCES:
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Mr. Stewart Istvanffy
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Ms. Diane Lemery |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Stewart Istvanffy Barrister & Solicitor Montreal, Quebec
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John H. Sims, Q.C. Deputy Attorney General of Canada |