Federal Court Decisions

                                                                                                                                             Date: 20020312

                                                                                                                                 Docket: IMM-4451-00

                                                                                                                   Neutral Citation: 2002 FCT 273

BETWEEN:

                                                                         BIBI KHAN

                                                                                                                                                        Applicant,

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                    Respondent.

                                                            REASONS FOR ORDER

KELEN J.:

[1]         This is an application under section 18.1 of the Federal Court Act, R.S.C., 1985, c. F-7, for judicial review of the decision of the Immigration and Refugee Board (Appeal Division) (hereinafter referred to as the "IAD"), dated July 31, 2000, wherein the IAD dismissed the appeal of Bibi Khan from the refusal by a visa officer of the applicant's sponsored application for permanent residence of her spouse, Mohammed Azeem, a citizen of Fiji. The issues in this matter are whether the decision was reasonable and whether the hearing was conducted in accordance with the rules of natural justice.

FACTS

[2]         The applicant Bibi Khan, born November 3, 1961, came to Canada as a visitor from Fiji and married Ashraf Khan, a gentlemen 21 years her senior. Mr. Khan sponsored her immigration application. Mrs. Khan was landed in 1983, and subsequently became a citizen. The couple had three children, and divorced on May 26, 1989. Two of the children have a serious blood disorder which requires ongoing treatment. A fourth child was born out of wedlock in 1989. Her children live with her, and the family receives social assistance from the Province of Alberta.

[3]         In November, 1997 the applicant married Mohammed Azeem, then 25 years old. The marriage was arranged by the applicant's brother, who lives in Fiji. The applicant and Mr. Azeem met in Fiji for the first time a week before the marriage. Both are of the Islamic faith. The applicant spent ten days in Fiji following the marriage and then returned to Canada.

[4]         Mr. Azeem is an unemployed carpenter in Fiji. He speaks little English, is illiterate, and has not completed grade school. He has a child from a previous relationship. Mr. Azeem was living with the mother of this child until October, 1997, one month before the marriage to the applicant. Mr. Azeem did not disclose this previous relationship or the child to the applicant until three years after their marriage - a few weeks before the IAD hearing.

[5]         Mr. Azeem and the applicant also have a child, who was born in March, 1999. The applicant has visited Fiji on six occasions since the marriage in 1997, and has sent approximately $1,000.00 to Mr. Azeem.

[6]         In December, 1997, one month after the marriage, the applicant sponsored Mr. Azeem for permanent resident status in Canada. That application was denied by a visa officer in accordance with subsection 4.3 of the Immigration Regulations on the grounds that Mr. Azeem entered into the marriage primarily for immigration purposes and has no intention of living with the sponsoring spouse permanently.

[7]         The applicant appealed the refusal to the IAD pursuant to subsection 77(3) of the Immigration Act, R.S.C., 1985, c. I-2. A hearing was held on April 27 and May 8, 2000. On July

31, 2000, the Board dismissed the appeal. That decision is the basis for this application for judicial review.

THE LAW

[8]         Subsection 4(3) of the Immigration Regulations, 1978, reads:

MEMBERS OF THE FAMILY CLASS

4. (3) The family class does not include a spouse who entered into the marriage primarily for the purpose of gaining admission to Canada as a member of the family class and not with the intention of residing permanently with the other spouse.

PARENT

    4. (3) La catégorie des parents ne comprend pas le conjoint qui s'est marié principalement dans le but d'obtenir l'admission au Canada à titre de parent et non dans l'intention de vivre en permanence avec son conjoint.

STANDARD OF REVIEW

[9]         O'Keefe J. discussed the standard of review of a decision of the IAD concerning family sponsorship applications in Khangura v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 815(F.C.T.D.) at paragraph 21:      

The appropriate standard of review of the Appeal Division's decision is one of correctness when it is dealing with a question of law and the standard of review when dealing with questions of mixed fact and law is reasonableness simpliciter. Findings of fact made by the Appeal Division should not be overturned unless they are clearly wrong.

Therefore, the appropriate standard of review in this matter is reasonableness simpliciter.                       

ISSUES

[10]       Were the findings of fact and credibility made by the IAD reasonable?

[11]       Were the rules of natural justice breached by the decision not to adjourn the hearing upon the withdrawal of the applicant's counsel?

ANALYSIS

(1)                 Findings of Fact

[12]       The IAD concluded, as a finding of fact at page 8 in its Reasons, that:

i.          The marriage is primarily to gain Mr. Azeem's admission to Canada as a permanent residence; and,

ii.         Mr. Azeem has no intention of living with Ms. Khan permanently.

These two findings of fact were reasonably open to the IAD for the Reasons stated by the IAD:

x.          Mr. Azeem's minimal knowledge of Ms. Khan's means of support for herself and the children, and regarding the medical requirements and treatment needed for the children afflicted with beta-thalassemia;

xi.          it is not reasonable that a young man such as Mr. Azeem would marry a woman with four children and who is eleven years his senior and remain unaware of the detailed circumstances of Ms. Khan's life in Canada if he were planning to live with her permanently and support the family;

xii.         Mr. Azeem's minimal knowledge about Ms. Khan's circumstances is not consistent with the evidence of their extensive communication over a large number of months together during Ms. Khan's numerous trips to Fiji, on-going letters and telephone calls.

The Court wishes to note that it does appear that Ms. Khan entered this marriage for the bona fide reason that she wants a husband, and that Ms. Khan appeared to have a genuine intent to live with Mr. Azeem in Canada. However, the IAD is of the view that Mr. Azeem is entering the marriage for the purpose of immigrating to Canada and that Mr. Azeem does not intend to live with Ms. Khan

permanently. This Court, on judicial review of these findings of fact, is satisfied that the findings of fact are reasonable. Accordingly, these findings of fact will not be set aside.

(2)                 Credibility Findings

[13]       The IAD found both Ms. Khan and Mr. Azeem to not be credible. This finding is not unreasonable in view of inconsistencies in both individuals' submissions before the IAD. The Tribunal held at page 8:

[...] when considering the evidence in totality, there are such significant credibility issues surrounding much of the evidence that the Appeal Division is not persuaded on balance, that the marriage is bona fide. For these reasons, this application for judicial review is dismissed.

(3)                 Breach of Natural Justice

[14]       The applicant was given an adequate opportunity by the IAD to adjourn upon the withdrawal of her counsel in order to obtain new counsel, and the applicant decided to proceed with the hearing. The first counsel for the applicant withdrew on the second day of the IAD hearing citing a conflict of interest between her duty as counsel and her duty as an officer of the Court. The applicant was urged by her first counsel, and invited repeatedly by IAD to adjourn in order that she obtain new counsel. Instead, the applicant decided to proceed after being fully informed about her rights and about the remainder of the proceeding. In these circumstances, the applicant cannot object at this stage to the IAD not adjourning the hearing. Accordingly, there is no breach of the rules of natural justice with respect to the conduct of the IAD hearing in this regard.

CONCLUSION

[15]       For these reasons, the finding of the IAD with respect to the facts and credibility are reasonable, and do not warrant interference on judicial review. Further, the conduct of the IAD hearing did not breach the rules of natural justice. Accordingly, this application for judicial review is dismissed.

                                                                                                                                  (signed) Michael A. Kelen

                                                                                                     _______________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

March 12, 2002