Friday, September 30, 2011

Dobson—ignored evidence of genuine marriage

Dobson v. Canada (Citizenship and Immigration), 2011 FC 121 (CanLII)

Judge: Justice Heneghan

Date heard: November 10, 2010

Date decided: February 2, 2011

Counsel for Dobson: David Matas

Counsel for Minister: Aliyah Rahaman

Place of Hearing: Winnipeg, MB

The Applicant applied for judicial review of a decision of the Immigration Appeal Division upholding a visa officer’s decision refusing the permanent resident application of her sponsored spouse (para. 1).

The Applicant was a Canadian living in Edmonton. The spouse, Mr. Ali, was a 40-year-old citizen of Egypt. He had been married before; his first marriage was in Egypt and he had one child from it, his second marriage was in the United States in an apparent attempt to get status there, and his third was a common-law marriage with a woman with whom he had three children, and during which he fathered a fourth child with his first ex-wife (paras. 2-4).

The Applicant met her husband in September 2006 and their relationship began soon after.  She visited him in New York. He was not able to obtain a visa to visit her in Canada. They married in March 2007 and their application was refused in January 2008 on the basis that it was not a genuine marriage (paras. 5-7).

The Applicant and her husband maintained written and telephonic contact and she visited him seven times between March 2007 and August 2008. Their daughter was born in October 2008 in Edmonton; at which time Mr. Ali had moved back to Egypt (paras. 8-9). The IAD hearings took place in May, July, and August 2009, and in August 20098 the Applicant and daughter visited Mr. Ali and his family in Egypt (paras. 10-11).

The IAD considered the daughter and the evidence of ongoing contact, and nevertheless found that the marriage was not genuine (paras. 12-13). Justice Henghan found the IAD made factual findings that were “unreasonable, as they lack justification and intelligibility” (para. 16).

The IAD found the Applicant and her husband “had not addressed their religious incompatibility” (para. 17). She was a casually observant member of the United Church, and he was a non-practising Muslim (para. 18). They testified that there plan was to expose their daughter to both religions and allow her to choose; Heneghan found there was sufficient evidence that they has “addressed their religious differences”, such as they were, and that the IAD’s conclusion on this point was unreasonable (para.  19).

The IAD found that the Applicant had not discussed her husband’s fathering a child with his ex-wife; Henghan found to the contrary that the Applicant had testified that she had specifically discussed this with him (paras. 20-21).

The IAD found that “the Applicant and Mr. Ali had not discussed their future plans, and that the Applicant had not taken sufficient steps to integrate Mr. Ali into her life” (para. 22). Heneghan found that there was evidence of discussion of future plans and of integrating their finances, and that given the fact the Mr. Ali lived outside of Canada, “it is not clear how the Applicant would have further integrated Mr. Ali into her daily life” (paras. 23-24).


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