Ahmed v Canada (Citizenship and Immigration), 2019 CanLII 130871 (CA IRB)
Immigration and
Immigration Appeal Division |
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Commission de l’immigration
Section d’appel de l’immigration |
IAD File No. / No de dossier de la SAI: TB8‑30721
Client ID No. / No ID client: 61070229
Reasons and Decision − Motifs et décision
Sponsorship Appeal
Appellant(s) |
Ayesha AHMED |
Appelant(e)(s) |
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Minister of Citizenship and Immigration |
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Respondent |
Le ministre de la Citoyenneté et de l'Immigration |
Intimé(e) |
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Date(s) of Hearing |
September 4, 2019
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Date(s) de l’audience |
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Place of Hearing |
Toronto, Ontario |
Lieu de l’audience |
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Date of Decision |
October 15, 2019 |
Date de la décision |
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Panel |
Benjamin R. Dolin |
Tribunal |
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Counsel for the Appellant(s) |
Joel Sandaluk |
Conseil(s) de l’appelant(e) / des appelant(e)s |
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Designated Representative(s) |
n/a |
Représentant(e)(s) désigné(e)(s) |
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Counsel for the Minister |
Vanessa Mayer |
Conseil du ministre |
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REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for decision in the appeal of Ayesha Ahmed (the Appellant) from the refusal of an application for a permanent resident visa made by Usman Ahmed (the Applicant). The Appellant and Applicant married on January 24, 2014. The Applicant, however, had not civilly registered his religious divorce (“talaq”) from his first wife at that time. As a result, a visa officer determined that the Applicant cannot be considered a member of the family class for sponsorship purposes, pursuant to section 117(1)(c)(i) of the Immigration and Refugee Protection Regulations (the Regulations):
Excluded relationships
(9) 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…
[2] The refusal was issued in November 2018 and the Appellant filed an appeal with the Immigration Appeal Division (IAD). A hearing date was scheduled for September 4, 2019. At that time, counsel for the Minister conceded that the relationship is genuine. As there was no disagreement as to the facts of the appeal, no evidence was called. Counsel provided their legal submissions.
ISSUES AND DECISION
[3] The onus is on the Appellant to establish that section 117(1)(c)(i) of the Regulations does not apply to the Applicant. She has not met that onus. The Applicant’s divorce from his first wife was not legally valid in Canadian law at the time of the nuptials.
[4] In the alternative, counsel for the Appellant argues that the sponsorship should be converted to a conjugal or common-law partner sponsorship. In the unique circumstances of this case, I find that a so-called Tabesh conversion[1] is appropriate.
[5] The appeal is allowed.
BACKGROUND
[6] The Appellant is a 36-year-old permanent resident of Canada. She is a citizen of Pakistan and has been living in Canada since being landed in 2010. The Applicant is a 35-year-old citizen and resident of Pakistan.
[7] The Appellant and Applicant entered an arranged marriage in January 2014. Both had been previously married. The Appellant divorced her first husband in 2012. The Applicant went through a religious divorce process (talaq) in 2012, but it was not registered with the civil authorities of Pakistan before their 2014 wedding. (It was subsequently registered in September 2018.)
[8] The Appellant sponsored the Applicant for permanent residence, but in 2015 the application was refused on the basis of sections 130(1)(b) and 130(3) of the Regulations:
130 (1) Subject to subsections (2) and (3), a sponsor, for the purpose of sponsoring a foreign national who makes an application for a permanent resident visa as a member of the family class or an application to remain in Canada as a member of the spouse or common-law partner in Canada class under subsection 13(1) of the Act, must be a Canadian citizen or permanent resident who
(a) is at least 18 years of age;
(b) resides in Canada; and
(c) has filed a sponsorship application in respect of a member of the family class or the spouse or common-law partner in Canada class in accordance with section 10.
(3) A sponsor who became a permanent resident or a Canadian citizen after being sponsored as a spouse, common-law partner or conjugal partner under subsection 13(1) of the Act may not sponsor a foreign national referred to in subsection (1) as a spouse, common-law partner or conjugal partner, unless the sponsor has been a permanent resident, or a Canadian citizen, or a combination of the two, for a period of at least five years immediately preceding the day on which a sponsorship application referred to in paragraph (1)(c) is filed by the sponsor in respect of the foreign national.
[9] Five years had not expired since the Appellant was landed as a sponsored spouse and she was living with the Applicant in Pakistan when she first applied to sponsor him.
[10] In 2017, the Appellant submitted a new sponsorship of the Applicant. In assessing this second sponsorship, a visa officer determined that the Applicant’s talaq divorce is not recognized in Canadian law. As such, he was technically still married to his first wife when he married the Appellant and is inadmissible pursuant to section 117(9)(c)(i) of the Regulations.
[11] The officer was, however, satisfied that the relationship is genuine[2] and noted the time that the Appellant had spent living with the Applicant in Pakistan. The officer accepted that the Appellant was residing in Canada at the time of the second sponsorship, although he noted that she was predominantly resident in Pakistan from December 2013 to March 2017.[3]
[12] The Appellant appeals this second sponsorship refusal to the Immigration Appeal Division.
ANALYSIS
Minister’s Submissions
[13] Counsel for the Minister submits that the visa officer’s determination that the Applicant’s talaq divorce is not valid in Canadian law is correct. For legitimate policy reasons, Canada does not recognize the simple talaq, where the husband simply says “I divorce you” three times and the marriage is considered dissolved. Canada requires that a civil authority assess the talaq and issue an order of divorce. Only then will the divorce be recognized. In this matter, the civil registration did not take place before the Applicant married the Appellant.
[14] Counsel for the Minister also opposes the Appellant’s request that the marital sponsorship be converted to a conjugal or common-law spousal sponsorship: a so-called Tabesh conversion. There is jurisprudence from the IAD that suggests that such a conversion may be inappropriate in cases involving section 117(9)(c)(i) of the Regulations.
[15] The appeal, it is submitted, should therefore be dismissed. The Appellant may re-apply to sponsor the Applicant under the common-law or conjugal partner category or they could marry again and a spousal sponsorship could be initiated.
Appellant’s Submissions
[16] Counsel for the Appellant submits that the Applicant’s divorce in 2012 is legally valid. An opinion letter from a Karachi lawyer indicates that under Pakistani law, the registration of the divorce in 2018 merely confirms that a legal divorce took place in 2012:[4]
The Divorce Deed dated 16.05.2012 executed between Mr. Usman Ahmed and Ms. Sara Salman clearly mentions talaq three times and is signed by both parties. This constitutes a valid divorce as per Pakistani law.
…
In conclusion, given that the Divorce Deed was signed on 16.05.2012 with the consent and signature of both parties, the divorce is deemed to be effected as of such date.
…
As such, it is our opinion that Mr. Usman Ahmed was legally divorced from Ms. Sarah Salman at the time of his marriage to Ms. Ayesha Ahmed on 24.01.2014.
[17] Counsel for the Appellant also notes that the Applicant’s first wife was considered free to re-marry in Pakistan and did so in 2014.[5]
[18] In the alternative, if it is determined that the Appellant’s marriage to the Applicant is not valid in Canadian law, a Tabesh conversion should be permitted. Counsel recognizes that there are some IAD decisions where the panel determined that a Tabesh conversion is not appropriate in cases involving section 117(9)(c)(i). However, converting a sponsorship category is discretionary and the Federal Court has not pronounced on the matter one way or another.
[19] The reluctance of some IAD panels to do a Tabesh conversion in a section 117(9)(c)(i) case is attributable to the desire not to promote or support bigamy. However, that is not an issue in this appeal. The Applicant’s ex-wife remarried in 2014 and they have nothing to do with one another. It is agreed that the Applicant is not in two conjugal relationships, but is in a marital-type relationship with the Appellant only.
[20] Moreover, the Minister’s own processing manuals recognize that a person may be sponsored to Canada as a common-law partner even if they are still legally married to another person, as long as they are separated from their first spouse:[6]
Persons who are married to third parties may be considered common-law partners provided their marriage has broken down and they have lived separate and apart from their spouse for at least one year, during which time they must have cohabited in a conjugal relationship with the common-law partner…A common-law relationship cannot be legally established if one or both parties continue to maintain a conjugal relationship with a person to whom they remain legally married.
[21] The concern that the Applicant, if landed in Canada as the Appellant’s common-law partner, could sponsor his first wife for permanent residence is addressed by section 5(b)(ii) of the Regulations:
Excluded relationships
5. For the purposes of these Regulations, a foreign national shall not be considered
…
(b) the spouse of a person if
…
(ii) the person has lived separate and apart from the foreign national for at least one year and is the common-law partner of another person…
[22] Counsel argues that the Minister’s suggestion that the Appellant could file a third sponsorship application is unreasonable. It would only serve to add additional delays to reuniting this genuine couple in Canada.
Analysis – Legal Validity of the 2012 Talaq
[23] In the Federal Court decision of Amin v. Canada(MCI),[7] the Honourable Mr. Justice Barnes confirmed that the talaq ceremony itself has no legal import in Canadian law. It is only the formal recognition of the divorce by a foreign tribunal or other state authority that is relevant when assessing whether the divorce will be recognized in Canada pursuant to section 22 of the Divorce Act. In so finding, Justice Barnes quoted approvingly from the British Court of Appeal case Chaudhary v. Chaudhary regarding the concerns that exist with respect to giving formal recognition to a talaq:[8]
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]
[24] I accept that the legal opinion provided by the Appellant confirms that under Pakistani law a person is free to re-marry after the talaq. However, our Federal Court has confirmed that a “bare talaq” without civil registration will not be recognized in Canada.
[25] As such, I find that the Applicant was still legally married to his first wife in 2014 and that he cannot be sponsored by the Appellant as a married spouse based on their 2014 wedding ceremony.
Analysis – Tabesh Conversion
[26] In some cases where the legal validity of the marriage is in issue but the couple has been living together as though they were married, the IAD has agreed to convert a family class sponsorship based on marriage to a common-law or conjugal sponsorship.
[32] The “Tabesh conversion” is a creation of the IAD. It appears to be derived from s. 67(2) of the IRPA, which states that where the IAD allows an appeal it may set aside the original decision and substitute the determination that “in its opinion, should have been made”. However, opinion is divided among members of the IAD regarding its authority to make such a conversion (Rahimi v Canada (Minister of Citizenship and Immigration), 2014 CarswellNat 6113 (Imm. and Ref. Bd. (App. Div.))). Even where the authority is believed to exist, the decision to permit such a conversion is wholly discretionary (Shahabi v Canada (Minister of Citizenship and Immigration), 2006 CarswellNat 6397 (Imm. and Ref. Bd. (App. Div.))).
[28] In my reasons for decision in Weng v. Canada(MCI), I granted such a Tabesh conversion and referenced a previous case where I had done the same:[10]
[30] Counsel for the Minister acknowledges in her written submissions that a so-called Tabesh conversion has been recognized as permissible by the Federal Court. While not all IAD Members are disposed to convert sponsorship applications, there are many examples of Members who are. In Perry v. Canada (MCI), [2011] CanLII 91609, I accepted a conversion from a marriage to a common-law partner sponsorship, stating as follows:
[24] In the past, the IAD has permitted the conversion of a sponsorship application from a spousal sponsorship to a common-law partner sponsorship. Sometimes referred to as a Tabesh conversion, I find that this would be appropriate in the circumstances of this case.
[25] At paragraph 27 of Tabesh v. Canada, an IAD panel held:
If an application for permanent residence is for a spouse, and the technical or formal requirements of a legally recognized marriage are not met, the facts of the relationship which are readily available to the visa officer also go to determination of whether the couple may be considered conjugal or common-law partners.
[26] This analysis has been accepted by other IAD members, who have permitted a conversion where a marriage is not legally valid but the couple has been living as common-law or conjugal partners. There is a clear exception suggested in the jurisprudence where section 117(9)(c)(i) of the Regulations is involved; i.e., the sponsor or foreign national was, at the time of their marriage, the spouse of another person. That is not in issue in this appeal. Moreover, I see no prejudice to the Minister, who had the opportunity to cross-examine the Appellant on his relationship with the Applicant, in allowing a conversion of the application.
[31] In the circumstances of the case at bar, and taking into account section 162 of the IRPA, I see no reason to reject the Appellant’s request for the sponsorship to be processed as a conjugal partnership.
[29] As I noted in Perry, supra, and as argued by counsel for the Minister in the case at bar, even accepting that the IAD has the discretion to convert a sponsorship, some panels have suggested that there should be an exception to this practice where section 117(9)(c)(i) of the Regulations is involved.[11] Recently, for example, in Syed v. Canada(MCI), I noted that a number of IAD decisions confirm that a Tabesh conversion may not be appropriate when the Applicant was the spouse of another person when the marriage to their sponsor took place.[12]
[30] However, in prior cases where I have not granted a conversion based on section 117(9)(c)(i), the Appellants did not bring to my attention cases where it had been permitted, nor were the policy aspects of the proposed conversion discussed. With the more fulsome submissions of Mr. Sandaluk in this case, I am of the view that in some circumstances it would be appropriate to convert a marriage sponsorship to a common-law or conjugal sponsorship, despite the 117(9)(c)(i) issue.
[31] Counsel for the Appellant refers to the decision of Member Nest in Granados Oronez v. Canada(MCI)[13] wherein the panel addressed submissions from Minister’s counsel that are similar to those in this appeal. At paragraphs 17-19, the Member held:
[17] I disagree with the Minister’s counsel reading of the subparagraph 117(9)(c)(i) of the Regulations. I find this would be too narrow an interpretation of the legislation, which according to the principles of construction is to be construed in the context of an entire statute. I find that the plain reading of the relevant section of the Regulations does not aim to exclude a foreign national from consideration as a member of the family class by virtue of any spousal type relationship to the sponsor…
[18] Regulation 117(1) of the Regulations provides clarification as to who is a member of the family class with respect to a sponsor. It reads:
117(1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
(a) The sponsor’s spouse, common-law partner or conjugal partner…
[32] In the circumstances of that appeal, Member Nest granted a Tabesh conversion even though the Appellant in that case has not formally divorced her first husband when she married the applicant. He allowed the appeal on the basis that, as a conjugal partner, the applicant was a member of the family class.
[33] In Ngo v. Canada (MCI),[14] IAD Member Hilling followed Granados Oronez and allowed a Tabesh conversion where the Appellant’s divorce from his first wife had not been finalized when he married the Applicant. In doing so, the Member placed particular emphasis on the fact that the Appellant’s divorce had been finalized by the time of the sponsorship application. That is not the case in this appeal as the Applicant’s divorce was not valid under Canadian law until 2018. However, Member Hilling’s comments at paragraph 14 are in line with the situation in the present appeal:
This is not a case that could set an undesirable precedent for bigamists, nor is it a case where there are additional grounds for refusal.
[34] In the case of Primmer v. Canada(MCI),[15] IAD Member MacLean determined that the section 117(9)(c)(i) refusal was not valid in law as there was evidence to establish that the Appellant was not still married to his first wife when he married the Applicant. However, he went on to say that if he was in error in that finding, a Tabesh conversion would be appropriate as they qualified as conjugal partners under section 117(1)(a) of the Regulations.
CONCLUSION
[35] I find that the Appellant’s talaq divorce is not valid in Canadian law and that, as a result, at the time of her marriage to the Applicant, she was still legally married to her first husband. Her divorce did not become valid until 2018, with the civil registration of the talaq with the government of Pakistan.
[36] However, I find that a Tabesh conversion would be appropriate in this case. In this regard, I am not bound by other IAD panels and the decision to permit such a conversion is “wholly discretionary.”[16] While there have been cases where I have not permitted a Tabesh conversion in similar circumstances, I did not have the benefit of the more fulsome submissions that have been provided in this case.
[37] In my view, this is not a case where allowing a Tabesh conversion could be seen as legitimizing bigamy. The Appellant’s divorce from her first husband is now complete and there is no evidence to suggest that the Appellant was attempting to maintain a marital relationship with two different men. Also significant is the fact that under Pakistani law the Applicant was legally divorced when he married the Appellant in Pakistan.
[38] Section 162 of the IRPA provides as follows:
Sole and exclusive jurisdiction
162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.
(2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit.
[39] Counsel for the Minister accepts that the Appellant and Applicant would qualify as a bona fide common-law couple and suggests that they simply initiate a new sponsorship application on that basis. Taking into account considerations of fairness and natural justice, I see no reason to send them back to the starting line when they are steps away from finishing a marathon.
[40] I am prepared to exercise my discretion to convert this sponsorship to a common-law partner sponsorship. It is not disputed that this common-law partnership is genuine and was not entered into primarily for immigration purposes.
[41] The appeal is allowed.
NOTICE OF DECISION
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“Benjamin R. Dolin” |
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Benjamin R. Dolin |
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October 15, 2019 |
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Date |
Judicial Review – Under section 72 of the Immigration and Refugee Protection Act, you may make an application 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.
[1] Tabesh v. Canada (Minister of Citizenship and Immigration) [2004] I.A.D.D. No. 2.
[2] Appeal Record, p. 40.
[3] Appeal Record, p. 37.
[4] Opinion letter from Moshin Tayebaly & Co., Exhibit A-1, pp. 15-16.
[5] Exhibit A-2, p. 17.
[6] See https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/non-economic-classes/family-class-determining-spouse/assessing-common.html
[7] Amin v. Canada (Minister and Citizenship and Immigration), [2008] FC 168.
[8] Ibid, paragraph 20.
[9] 2015 FC 973 (CanLII) at para. 32.
[10] 2015 CanLII 97698 (CA IRB).
[11] Also see, for example, Wu v. Canada(MCI), 2010 CanLII 96519, Khokar v. Canada(MCI), 2013 CanLII 100005, Kaur v. Canada(MCI), 2008 CanLII 33782.
[12] 2019 CanLII 82135 (CA IRB), at para. 6.
[13] Granados Oronez v. Canada, IAD VA7-01582, per Erwin Nest, February 9, 2009.
[14] 2011 CanLII 53825 (CA IRB).
[15] 2017 CanLII 15583 (CA IRB).
[16] Tang v. Canada(MCI), supra, note 9, at para. 32.