Docstoc

Casenoteassignment

Document Sample
Casenoteassignment Powered By Docstoc
					Immigration Law 377 Case Note Assignment, Spring 2007 The objective of the case note assignment is to offer students the opportunity to write a critical and policy oriented analysis of an immigration case. Choose one of the attached cases, do not analyze both. This is not a research assignment, although some limited additional reading beyond the course materials and the case you select may assist you. My main requirement is that you analyze either Khan or Lee in light of material we have covered so far regarding the values, principles, politics and contexts of Canadian immigration law. You will have two weeks to work on this assignment: February 2 to February 16. The assignment is due on February 16 by 3PM. Please hand your assignment to me in class or to my secretary Ms Veronica Uy. Ms Uy works until 4PM, her work day cannot be extended to accommodate assignment submissions. In assessing this work I will be looking for: 1. A clear understanding of the case. 2. An appreciation of how it relates to policy issues raised in class. 3. An understanding of how statutory interpretation is used by the decision-maker. 4. An understanding of whether or how the case contributes to development of the law. 5. Clear, concise and precise writing. The word limit for this assignment is 2000-2500 words. For students electing to complete this assignment, it will be worth 1/3 of your grade in the class. Most Canadian law reviews publish case notes of approximately 3000 words. Reading a sampling of these may give you some ideas. It is not possible to cover every aspect of the case in detail. A strong idea is to present a brief summary of the case and then to make one supported argument about it. Use consistent legal referencing to document your work. Footnotes which contain only referencing information need not be included in your word count.
Reminder about Written Assignment Rules for this class The word limits for these assignments are strictly applied. Please use your word processing software to count the words in the assignment. Please write the result of this count on your cover page. You need not include footnotes which do not contain anything more than bibliographic information in the word count. This is a strict limit, please stick to it. Assignments which exceed the relevant limit may incur a penalty of up to 10% of the total grade. As a matter of Faculty policy, I am not permitted to consider requests for extensions. All requests for extension must be directed to the Examinations Committee. Extension request forms are available in the Student Services Centre. Work submitted late for which no extension has been granted will incur a penalty of 5 marks (of 100) for each date late, including weekend and holiday days. Please double space your work and number your pages. Please use a font no smaller than 11 point. You must keep a copy of your assignment.

Date: 20061205 Docket: IMM-5478-05 Citation: 2006 FC 1461 Toronto, Ontario, December 5, 2006 PRESENT: The Honourable Mr. Justice Campbell

BETWEEN: HOW TIEM LEE Applicant and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

REASONS FOR ORDER AND ORDER

[1] In the present Application, the Applicant, a citizen of Bangladesh, challenges the decision of an Immigration Officer (Officer) who found him inadmissible for permanent residence in Canada. The Applicant applied under the ―entrepreneur‖ category prior to June 2002, and, although he was found to qualify, he was found to be inadmissible, pursuant to s.38(1) of the Immigration and Refugee Protection Act (IRPA); on the basis of medical evidence, the Officer found that the Applicant’s health conditions, which included polycystic kidney disease, hypertension, moderate mitral regurgitation and chronic renal failure, would reasonably be expected to cause ―excessive demands‖ on Canada’s health services.

[2] The Applicant argues that, as he is an entrepreneur with considerable net worth, the Officer erred in law by failing to consider his ability to provide for his own health care if admitted to Canada, and, further, that the Officer breached procedural fairness by not considering his request for a temporary resident permit.

I.

Did the Officer err in law by not considering the Applicant’s financial ability to pay for his own health care?

A. Considerations in answering the question

[3] On this issue, the Respondent argues that the Applicant’s ability to pay was properly not considered because it is not a factor that the Officer could, as a matter of law, take into consideration. Five reasons are provided in support of this submission. As outlined in the analysis which follows, I agree with the Respondent on each reason advanced.

1. There is a distinction between social and health services

[4] The Applicant relies on the Supreme Court of Canada’s decision in Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), [2005] S.C.J. No. 58 (Hilewitz) to argue that, as is the case with social services, a person in the Applicant’s position can pay for his own medical health services.

[5] In Hilewitz the Court reviewed decisions to deny permanent resident visas to two families with disabled children because, pursuant to s.19(1)(a)(ii) of IRPA, the disabled children might reasonably be expected to cause excessive demands on social services in Canada. In the majority decision, the Court found that the family’s ability to pay was a relevant factor when assessing for permanent resident status. The Court found that the ―investor‖ and ―selfemployed‖ categories under which the applicants qualified for admission, to a large extent, concerned the individual’s assets, and, thus, it would seem incongruous to interpret the legislation in such a way that the very assets that qualify these individuals for admission to Canada could be ignored in determining admissibility of their disabled child.

[6] In Hilewitz at para. 62, the Court noted that the officials concerned should have accounted for the means that the families had in providing social services for their disabled children through privately funded mechanisms: ¶ 62 The medical notifications relating to both Gavin Hilewitz and Dirkje de Jong identified three social services that might be required: special education, vocational training and respite care. The Hilewitz and de Jong families both expressed an intention to send their children to private schools with specialized education. Mr. Hilewitz also expressed an intention to purchase a company which would provide employment for Gavin, thus avoiding the need for vocational training. Nevertheless, both applications were rejected on the basis that there would be excessive demands on social services.

[Emphasis added]

Further, at paras. 67-69, the Court recognized the difference between social and health services and noted that in Ontario, there were mechanisms by which parents, with the ability to pay, might be required to contribute financially to the costs of social services for their children:

¶ 67 In the de Jong case, the letter from Dr. Bertrand similarly shows that he too made no distinction between health and social services, and refused to take into account the de Jong family's resources and support in determining the potential burden on social services. Instead, he raised the speculative possibility that the family would fall on hard times and be forced to resort to publicly funded services. Despite the clear directions in the order of Reed J., Dr. Bertrand persisted in insisting that in making his determination, he had no authority in law to consider the family's financial resources. ¶ 68 These views, it seems to me, undermine and contradict the direction in the legislation that a person can only be found to be ineligible for admission if his or her admission "would" or "might reasonably be expected" to cause excessive demands. That means that something more than speculation must be applied to the inquiry. The fears articulated in the rejections of the Hilewitz and de Jong applications, such as possible bankruptcy, mobility, school closure or parental death, represent contingencies that could be raised in relation to any applicant. Using such contingencies to negate a family's genuine ability and willingness to absorb some of the burdens created by a child's disabilities anchors an applicant's admissibility to conjecture, not reality. ¶ 69 Social services are regulated by provincial statutes. In Ontario, the province in which both the Hilewitz and de Jong families have expressed their intention to live, the Developmental Services Act, R.S.O. 1990, c. D.11, as amended, addresses some of the facilities, assistance and services that may be provided to a person with developmental disabilities. Section 15 of the Developmental Services Act Regulations, R.R.O. 1990, Reg. 272, states that a determination will be made as to the ability of the applicant for "admission to a facility and for assistance" to contribute "to all or any part of the cost" thereof. Section 16 extends the same approach to applications for "services". The Ontario legislation manifestly contemplates the possibility of financial contributions from families able to make them. Even if the Hilewitz and de Jong families' stated intentions regarding education and training did not materialize, the financial resources of both families are such that they likely would be required to contribute a substantial portion, if not the entirety, of the costs associated with certain social services provided by the province.

[Emphasis added]

As a result, because Hilewitz dealt specifically with an Applicant’s ability to pay for social services and not health services, I reject the Applicant’s argument that the reasoning in Hilewitz applies equally to health services.

2. A permanent resident automatically has health insurance in Canada

[7] The Canada Health Act, R.S.C. 1985, c. C-6 (CHA) provides that the health services that may be required by the Applicant are insured services covered by provincial and territorial publicly funded health care insurance plans: s.2 provides that ―insured health services‖ includes medically necessary hospital and physician services provided to insured residents of a province, and an insured person includes a resident of the province for a set period; s.9 requires that health services provided be comprehensive; and s.10 provides that ―the health care insurance plan of a province

must entitle one hundred per cent of the insured residents of a province to the insured health services provided for by the plan on uniform terms and conditions.‖

3. Paying for health care is contrary to Canadian public policy

[8]

Section 3 of the CHA provides the primary objective of Canadian health care policy:

3. It is hereby declared that the primary objective of Canadian health care policy is to protect, promote and restore the physical and mental well-being of residents of Canada and to facilitate reasonable access to health services without financial or other barriers. [Emphasis added]

3. La politique canadienne de la santé a pour premier objectif de protéger, de favoriser et d’améliorer le bien-être physique et mental des habitants du Canada et de faciliter un accès satisfaisant aux services de santé, sans obstacles d’ordre financier ou autre.

[9] Counsel for the Applicant confirmed that, if allowed to stay in Canada, the Applicant will likely reside in Ontario, and, therefore, Ontario law comes into play in the present Application. In Ontario, s.10 of the Health Insurance Act, R.S.O. 1990, c.6 states that the purpose of the Ontario Health Care Insurance Plan (Plan) is to provide for insurance against the costs of insured services on a non-profit basis, and on uniform terms and conditions available to all residents of Ontario. This legislation establishes that every person who is an eligible resident of Ontario is entitled to become an insured person under the Plan, to have the insured health services they require paid for by the Plan, and also prohibits all other contracts of insurance for insured health services.

4. There is no private health care in Canada

[10] Relevant to the present Application, the Federal Court of Appeal in Deol v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 949 at para. 46 addressed whether an Applicant’s ability to pay for health services should be considered when issuing permanent resident visas: Issue 5: Did the Board err in law in failing to have regard to the financial ability of the applicant or members of her family to pay for the cost of surgery that might be recommended for Mr. Singh? ¶ 46 In my opinion, it did not. As has been held in several previous cases, it is not possible to enforce a personal undertaking to pay for health services that may be required after a person has been admitted to Canada as a permanent resident, if the services are available without payment. The Minister has no power to admit a person as a permanent resident on the condition that the person either does not make a claim on the health insurance plans in the provinces, or promises to reimburse the costs of any services required. See, for example, Choi v. Canada (Minister of Citizenship and Immigration) (1995), 98 F.T.R. 308 at para. 30; Cabaldon v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 296 at para. 8; Poon, supra, at paras. 18-19.

[Emphasis added]

The basis for the decision is that, on the application of the CHA, there should be no private market outlets for health services in Canada.

[11] By s.12 and ss.18-19 of the CHA, financial charges such as extra billing and user charges for insured health services are not permitted as they are seen to be barriers, or impediments, to people seeking medical care and, as such, are contrary to the accessibility criterion. Thus, charging patients for insured health services is expressly prohibited under the CHA. Based upon how Canada disseminates health services to permanent residents, a person’s financial ability to pay for health services would be irrelevant.

[12] Section 10 of the Commitment to the Future of Medicare Act, R.S.O. 2004, c. 5 prohibits physicians from receiving payment or benefit for insured health services covered by the Plan from anyone other than the Plan, a public hospital or a prescribed facility. Section 10 also prohibits physicians from charging more or accepting payment or another benefit for more than the amount payable under the Plan for rendering insured services to an insured person. As well, a person or entity generally may not charge or accept payment or other benefit for an insured service rendered to an insured person.

5. Excessive demands on health care are more than just financial demands

[13] An applicant with abundant resources would still pose ―excessive demands‖ on Canadian health care by simply using up finite places in waiting lists. Justice Snyder explains this point in Gilani v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 240 at paras. 23-26: ¶ 23 The high cost of hospitalisation and treatment was one of the reasons for the Program Manager's refusal to issue the Minister's Permit. However, if the Applicant were granted a Minister's Permit, she would not be eligible for provincial health insurance in Ontario ("OHIP"). As a result, the high cost of her treatment was not something that would place an excessive demand on the Canadian health care system; it would be the Applicant, and not OHIP, who would pay for that treatment. Furthermore, the evidence revealed that the Applicant had private medical insurance to cover her treatment expenses and had significant financial assets (she was prepared to invest approximately $2 million Canadian in her sister's business) which could pay for anything not covered by insurance. Her admission on a Minister's Permit, therefore, would not actually cost the province anything in terms of her medical treatment. ¶ 24 Although the Program Manager was in favour of obtaining the province's input on the admission of the Applicant on a Minister's Permit, there is no indication that the input was actually obtained. If the Program Manager had contacted the province, she would have discovered that the Applicant would not qualify for OHIP if admitted on a Minister's Permit. In my view, the Applicant's eligibility for provincial health insurance is something that the Program Manager should have

investigated and referred to specifically in her decision given her concern regarding the high cost of the Applicant's treatment. As a result, her conclusion regarding the cost of the Applicant's medical treatment and its relation to the issuance of a Minister's Permit was unreasonable and based on inaccurate assumptions. ¶ 25 However, in my view, this error is not sufficient to allow this application for judicial review. The high cost of treatment, although a major factor in the Program Manager's decision, was only one factor considered by her in refusing to issue a Minister's Permit. That decision was also based on the potential displacement of Canadians from waiting lists and the lack of a compelling need to enter Canada. While the medical evidence indicates that her breast cancer has stabilized, it also indicates that she will require care from a cancer specialist and will probably require treatment in the future. Although, she is willing and able to pay the costs of any medical treatment she does require, it is likely that providing service to her would displace Canadians waiting for medical services. ¶ 26 With respect to the issue of the displacement of Canadians on waiting lists, there is no mention in the Certified Tribunal Records of the Applicant's intention to seek treatment in the United States. If the Applicant did intend to seek medical treatment in the United States, this information should have been submitted. The decision of the Program Manager, based on the remaining evidence, is supported by reasons that can stand up to a somewhat probing examination

[Emphasis added]

B. Conclusion [14] Given the considerations described, I find that financial ability does not change entitlement or access to available health care, and this, compounded with the reality that there is no private health care available, results in the conclusion that the Applicant’s financial ability to pay for health care is not a salient consideration in granting permanent resident status.

[15] As a result, I find that the Officer did not err in law by not considering the Applicant’s financial ability to pay for his own health care. II. Did the Officer breach procedural fairness by not considering the Applicant’s request for a Temporary Resident Permit? [16] Section 24(1) of IRPA enunciates how a Temporary Resident Permit (TRP) is issued:

24. (1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time.

24. (1) Devient résident temporaire l’étranger, dont l’agent estime qu’il est interdit de territoire ou ne se conforme pas à la présente loi, à qui il délivre, s’il estime que les circonstances le justifient, un permis de séjour temporaire — titre révocable en tout temps.

Where an applicant requests that he or she be considered for a TRP, the request must be accommodated (Japson v. Canada, [2004] F.C.J. No. 694 at para. 25).

[17] In a letter to the Canadian Consulate General dated February 3, 2004, the Applicant made the following statement: If necessary, our client’s would not be adverse to coming to Canada on Temporary Resident permits, with such terms and conditions which you may require. (Applicant’s Record, p. 186)

I find that the statement constitutes a request for consideration of a TRP.

[18] The Respondent defends the Officer’s failure to consider the Applicant’s request on the basis that the Applicant did not provide sufficient information and argument to enable the Officer to determine whether a TRP is warranted. I reject this argument. I agree with Counsel for the Applicant that the request placed before the Officer, when read in context with the application for permanent residence, made it clear that the Applicant wished to remain in Canada by whatever grant of authority. Therefore, the Applicant’s request to the Officer, to consider granting him a TRP, required the Officer to respond without the necessity of a separate submission. In my opinion, the failure of the Officer to deal with the request constitutes an error in due process. ORDER

Pursuant to s.18.1(3)(a) of the Federal Courts Act, I hereby order that a different immigration officer assess the Applicant’s Temporary Resident Permit Application on the basis of the existing evidentiary record.

―Douglas R. Campbell‖ Judge FEDERAL COURT Names of Counsel and Solicitors of Record

DOCKET: STYLE OF CAUSE:

IMM-5478-05 HOW TIEM LEE v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:

Toronto, Ontario

DATE OF HEARING:

October 31, 2006

REASONS FOR ORDER AND ORDER BY: CAMPBELL J.

DATED:

December 5, 2006

APPEARANCES BY:

Wennie Lee

FOR THE APPLICANT

Martin Anderson

FOR THE RESPONDENT

SOLICITORS OF RECORD:

LEE & COMPANY Barristers Toronto, Ontario FOR THE APPLICANT

John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE RESPONDENT

Date: 20061213 Docket: IMM-2971-06 Citation: 2006 FC 1490 Calgary, Alberta, December 13, 2006 PRESENT: The Honourable Mr. Justice Hughes

BETWEEN: MOHAMMAD FARID KHAN Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1] The Applicant Mohammad Farid Khan, himself a widower, married his deceased brother’s wife in Pakistan. He is a Pakistani by origin and now resides in Canada, his new wife is Pakistani and presently resides there. The Applicant sought to bring his new wife to Canada but her application for a permanent resident visa was refused by the visa officer. An appeal from that decision to the Immigration and Refugee Board was dismissed. This Court is asked to judicially review that decision of the Board. [2] For the reasons that follow I find that the application is allowed.

[3] The appropriate provision is section 4 of the Immigration and Refugee Protection Regulations, 2002, SOR/2002-227 which provides:
4. For the purpose of these Regulations, a foreign national shall not 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 or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the 4. Pour l’application du présent règlement, l’étranger n’est pas considéré comme étant l’époux, le conjoint de fait, le partenaire conjugal ou l’enfant adoptif d’une personne si le mariage, la relation des conjoints de fait ou des partenaires conjugaux ou l’adoption n’est pas authentique et vise principalement l’acquistion d’un statut ou d’un privilège aux

Act.

termes de la Loi.

[4] This provision was recently considered by Justice Mosley of this Court in Donkor v. Canada (MCI) 2006 FC 1089 as there were changes to the provision since it was last substantively considered in Horbas v. Canada (MCI), [1985] 2 FC 369. Justice Mosley in paragraphs 18 and 19 of his Reasons determined that this new section 4 requires a two pronged test wherein: 1. The genuineness of relationship must be considered in the present tense such that a relationship that may not have been ―genuine‖ at the outset may have become genuine; and Consideration must be given as to whether the relationship entered into primarily for the purpose of acquiring any status or privilege under the Act.

2.

[5] Both branches of the test must be met before a person cannot be considered a spouse or partner. While the Applicant bears the onus of proof at this stage to demonstrate that a reviewable error has occurred, if the Applicant succeeds in that respect on only one of these two branches of the test, then it is open to the Court to find that a reviewable error has occurred. [6] The fundamental facts of this case are straightforward. The Applicant was born and resided in Pakistan where he married his first wife in 1976. There were three children by that marriage. The Applicant was permitted to enter Canada , which he did, leaving his wife and children in Pakistan. The Applicant’s first wife died of a heart attack in July 2002. A younger brother of the Applicant married Farzana Bibi who bore him four children. In 1995 the younger brother died in an automobile accident. The Applicant’s mother let it be known that, for the honour of the family, the Applicant should marry his deceased brother’s wife Farzana Bibi which he did in September 2002. The wedding was apparently a small affair attended only by a few family members. The Pakistani government issued a marriage certificate the genuineness of which is not challenged. [7] The Applicant returned to Canada but went back to Pakistan from time to time for periods of several months. The evidence shows many phone calls were placed by the Applicant to Pakistan, presumably to his new wife. [8] The Applicant applied for a permanent resident visa for his new wife so that she could enter Canada. At the time of the initial interview with the visa officer in Pakistan the Applicant indicated that his wife may be two months pregnant. The evidence is unclear on this point as the new wife says that she only stated that she felt dizzy and unwell and that she might be pregnant but was uncertain. The visa officer suggested a pregnancy test which was conducted and turned out to be negative. The visa officer rejected the application stating in a letter dated October 2, 2004: Section 4 of the regulations, states that, for the purpose 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 or adoption is not genuine or was entered into primarily for the purpose of acquiring any status or privilege under the Act. You were interviewed at this High Commission on June 14, 2004. I have determined that the relationship between you and your spouse is not genuine and was entered into primarily for the purpose of acquiring permanent resident for you in Canada. In reaching this decision the following factors and information were taken into consideration. The fact that you married your late husband’s brother and there is no evidence of relationship ie letters, greeting cards etc. The wedding photos you submitted show you and the sponsor and there are no photos of the guests or of the wedding ceremony. The fact that you displayed limited knowledge about sponsor’s personal circumstances ie, the place where he lives in Canada, his age etc.

[9] The Applicant appealed this decision to the Board and on May 3, 2006 a decision was issued rejecting the appeal. It is clear from the Board’s decision that serious issues as to credibility were present and that the Board found that the testimony of the Applicant on the one hand and his new wife on the other were irreconcilable. As to the genuineness of the spousal relationship the Board stated at paragraphs 19 and 20 of the Reasons: [19] While both witnesses’ testimony was consistent with respect to the reasons for the marriage, the marriage arrangements, details of the wedding and post marital activities and the couple had an extensive knowledge of their family composition and their children’s education and circumstances I find that the mutual background of the witnesses is consistent with that of the family members who lived together for 15 years and is not indicative of a genuine spousal relationship between the appellant and the applicant. [20] The applicant testified that since the death of the appellant’s wife she takes care of the appellant’s younger son by cooking, purchasing clothes for him, and paying his school fees. There was evidence of the appellant’s financial support which was divided between the applicant and the appellant’s brother who is the head of the household. I find the evidence of the appellant’s financial support to the applicant and his immediate family in Pakistan and the applicant’s care for his son consistent with the relationship between concerned and empathetic family members who are facing challenges presented by situation of their widowhood and widowerhood.

[10] The law is clear that in a judicial review in these circumstances I must defer to the Board as to its findings of fact and not interfere unless I find them to be patently unreasonable. (see e.g. Khella v. Canada (MCI), 2006 FC 1357 at para 12). However where there has been an error of law the standard is that of correctness (see e.g. Mugasera v. Canada (MCI ), 2005 SCC 40 at para 37).

[11] The issue that arises in this case is that of the ―genuineness‖ of the relationship as between the Applicant and his new wife. The facts are clear, they married to preserve the honour of the family, the Applicant took his deceased brother’s wife as his own. There has been limited contact between them, after all the Applicant is in Canada and the new wife cannot come to Canada and remains in Pakistan.

[12] In the Donkor case, supra at paragraph 21 Justice Mosley reviews the questioning of an officer in that case revealing what might be called a Harlequin romance view of a ―genuine‖ relationship. [21] The respondent submits that the officer properly considered the application. The officer interviewed the applicant and his spouse in order to assess their knowledge of each other and the genuineness of the relationship and noted several inconsistencies in their responses regarding their first meeting and introduction, their first date, their first sexual encounter, their engagement rings, lack of knowledge of each other’s family and educational background and their financial arrangements.

[13] In Siev v. Canada (Minister of Citizenship and Immigration) 2005 FC 736 Justice Rouleau of this Court reviewed certain guidelines set out by the Minister for dealing with these situations reflecting tests laid down by the Supreme Court of Canada in M v. H [1999] 2 SCR 3 at paragraph 15. [15] The guide OP 2 – Processing Members of the Family Class sets out the tests laid down by the Supreme Court in M. v. H., 1999 CanL11 686 (S.C.C.), [1999] 2 S.C.R. 3 for determining whether two persons are actually living in a conjugal relationship: shared shelter (e.g. sleeping arrangements); sexual and personal behaviour (e.g. fidelity, commitment, feelings towards each other); services (e.g. conduct and habit with respect to the sharing of household chores)

social activities (e.g. their attitude and conduct as a couple in the community and with their families); economic support (e.g. financial arrangements, ownership of property); children (e.g. attitude and conduct concerning children) the societal perception of the two as a couple.

From the language used by the Supreme Court throughout M. v. H., it is clear that a conjugal relationship is one of some permanence, where individuals are interdependent – financially, socially, emotionally, and physically – where they share household and related responsibilities, and where they have made a serious commitment to one another.

[14] The conclusion is appropriate, genuineness is revealed by a shared relationship of some permanence, interdependence, shared responsibilities and a serious commitment.

[15] In the present case the Board appears to have concluded that one cannot have a ―genuine‖ relationship in a situation where a woman has passed in her status from a sister-in-law of some fifteen years to that of a wife in a situation where both parties have recently lost their first spouse. There is no reason why much needs to change, the families lived together for years. Surely one is not searching for a ―first date – first sexual encounter‖ situation. Western Harlequin romance ideals do not apply to everyone. [16] The ―genuineness‖ of the relationship must be examined through the eyes of the parties themselves against the cultural background in which they have lived. This was done in Khella supra. Adopting this approach, I find that the Board member erred in concluding that evidence ―consistent with that of family members who lived together for 15 years…is not indicative of a genuine spousal relationship‖. [17] The Board noted the uncontradicted evidence of the applicant and the appellant concerning details about their marriage and personal knowledge of each other. Moreover, witnesses were consistent concerning the evidence of the origin of the relationship. However, it failed to considered cultural factors and the condition of the appellant who is unsophisticated. [18] There were many reasons why the applicant married his sister-in-law for genuine purposes. The union was encouraged by the applicant’s mother in order to preserve the family honour because there were children living in the home. The Applicant’s own children lived in the same household as the appellant. The Board erred by ignoring relevant factors and failed to provide evidence on its finding that their knowledge of

each other was solely based on family members living together for 15 years. This conclusion is unreasonable when considering the evidence as whole. There is no reason why such a marriage cannot be genuine given the cultural factors. [19] The inconsistencies raised by the Board took a microscopic view of the evidence before it by focusing on peripheral points in the case. As mentioned above, the appellant testified that she was ill and had a fever and she thought she might be pregnant. [20] For these reasons I will send the matter back to be determined again by a different member of the Board. However I realize that the precise point has not clearly been considered in the jurisprudence and suggest the following question for certification: ―What are the proper criteria for consideration of the genuineness of a relationship under the provisions of section 4 of the Immigration and Refugee Protection Regulations 2002?

[21] I will not certify such a question, or any other question, until I receive submissions from counsel for the parties. I ask for such submissions within thirty (30) days from the date of these Reasons.

JUDGMENT For the Reasons provided herein: 1. 2. The application is allowed; The matter is returned to the Board for determination by a different member consistent with these Reasons. Counsel for the parties may make submissions as to the certification of a question or questions within thirty (30) days hereof; No costs are awarded.

3.

4.

―Roger T. Hughes‖ Judge

FEDERAL COURT SOLICITORS OF RECORD

DOCKET:

IMM-2971-06

STYLE OF CAUSE:

Mohammad Farid Khan v. The Minister of Citizenship and Immigration

PLACE OF HEARING:

Calgary, Alberta

DATE OF HEARING: REASONS FOR JUDGMENT AND JUDGMENT: DATED: APPEARANCES:

December 12, 2006

HUGHES J. December 13, 2006

Mr. Birjinder Mangat

FOR THE APPLICANT

Mr. Brad Hardstaff

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mangat Law Office Calgary, Alberta

FOR THE APPLICANT

John H. Sims, Q.C. Deputy Attorney General of Canada

FOR THE RESPONDENT


				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:8
posted:12/27/2009
language:English
pages:16