Cheikhna v. Canada (Minister of Citizenship and
Immigration)
Between
Kissima Cheikhna, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1256
[2012] A.C.F. no 1256
2012 FC 1135
Docket IMM-1757-12
Docket IMM-1757-12
Federal Court
Montréal, Quebec
Noël J.
Heard: September 25, 2012.
Judgment: October 1, 2012.
Montréal, Quebec
Noël J.
Heard: September 25, 2012.
Judgment: October 1, 2012.
(23 paras.)
· REASONS FOR JUDGMENT AND JUDGMENT
1 NOËL J.:-- This is an application for
judicial review of a decision by the Immigration Appeal Division (the
"IAD") of the Immigration and Refugee Board, dated January 31, 2012,
pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27
("IRPA"). The IAD dismissed the applicant's appeal from the refusal
of the application for permanent residence made by Laalah Yacouba Tandia
("Ms. Tandia") as a member of the family class on the ground that the
wedding was not solemnized in accordance with the requirements of Mauritanian
law.
I. Facts
2 The
applicant has been a permanent resident in Canada since April 20, 2005, and is
originally from the Islamic Republic of Mauritania, like Ms. Tandia. The
applicant met Ms. Tandia on December 6, 2006 in Mauritania and apparently asked
her to marry him on December 25, 2006. The couple was married by proxy on
October 17, 2007 in Kaédi, Mauritania, while Mr. Cheikhna was living in Canada.
3 The
applicant made an application to sponsor Ms Tandia. On March 12, 2009, an
immigration officer at the Canadian Embassy in Abidjan informed Ms. Tandia by
letter that her application for permanent residence had been refused. The
reason invoked was that the relationship between Mr. Cheikhna and Ms. Tandia
was not genuine and had been entered into primarily for the purpose of
acquiring status. The applicant appealed to the IAD.
4 During
the hearing, the Minister filed a motion to add a second ground of refusal,
namely, that the marriage did not comply with Mauritanian law. The IAD
proceeded on the scheduled date, but granted additional time for the appellant
to complete his documentary evidence. The appeal was dismissed in a decision
rendered on January 31, 2012.
II. Decision under review
5 The
IAD dismissed the applicant's appeal on the sole ground that couple's marriage
failed to meet the requirements of Mauritanian law, which is contrary to
section 2 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 ("IRPR"). Having
determined that the marriage was not valid under Mauritanian law, the IAD found
that it was not necessary to deal with the second ground raised by the
Minister, namely, the genuineness of the relationship between the spouses.
6 First,
the IAD was not satisfied, based on the evidence adduced, that marriage by
proxy is authorized under Mauritanian law. The IAD, relying on Quao v Canada (Minister of Citizenship and Immigration), 2000 CarswellNat 1682 at paragraph 31, 2000 CanLII 15954 (FC) (Quao), noted that the onus is on the
appellant to show, on a balance of probabilities, that this form of celebrating
a marriage is valid, because foreign law is not within the general knowledge of
the panel.
7 Second,
the IAD found that even if the marriage by proxy was legal, the appellant had
not discharged his burden of proving that the marriage had in fact been
solemnized in that manner. The appellant did not submit a proxy document in his
evidence. Neither the excerpt from the registry of marriage certificates nor
the document entitled "Acte de marriage" make any reference to the
presence of a proxy representing Mr. Cheikhna at the time of the marriage or to
a sworn statement by such a proxy. The IAD noted that appearance of
authenticity of a document issued by a foreign state creates only a presumption
of validity, which may be rebutted.
III. Applicant's
submissions
8 The
applicant argues that the IAD drew an unreasonable conclusion when it
determined that the applicant had not discharged his burden of proof and had
failed to demonstrate that marriage by proxy was legal in Mauritania and that
the marriage had been solemnized according to the requirements of Mauritanian
law.
9 The
applicant submits that the IAD erred by initially determining that the marriage
certificate did not contain all of the elements required by the Personal Status
Code and by subsequently finding that, if there was a failure to comply, this
would render the marriage invalid under Article 49 of the Personal Status Code,
because the marriage certificate is not a constituent element of the marriage.
IV. Respondent's submissions
10 The
respondent argues that the IAD made a reasonable finding by determining that
the applicant had failed to demonstrate that his marriage was valid under
Mauritanian law. The documentary evidence adduced by the applicant does not
specifically deal with the issue of whether marriage by proxy is valid under
Mauritanian law. The applicant presented no documentary evidence or clear
expertise with respect to the legality of marriage by proxy under Mauritanian
law, nor did he submit any proxy documents.
11 Furthermore,
the IAD validly determined that the marriage was void, given that article 49 of
the Personal Status Code stipulates that the absence of one of the constituent
elements of a marriage, in this case the presence of one of the spouses,
renders it void.
V. Issue
12 Did
the IAD err in determining that the applicant's marriage by proxy failed to
meet the requirements of Mauritanian law, which is contrary to section 2 of the
IRPR?
VI. Standard of review
13 The
issue is reviewable on a reasonableness standard, given that it is a question
of mixed fact and law (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraphs 164-166, [2008] 1 SCR 190 (Dunsmuir)).
VII. Analysis
14 The
panel's decision is reasonable and no intervention from this Court is
warranted.
15 The
applicant had the onus of demonstrating to the IAD, on a balance of
probabilities, that (1) marriage by proxy is valid under Mauritanian law (Quao, supra, at paragraph 31); and (2) that a marriage by proxy had been validly
solemnized.
16 The
IAD validly concluded, in light of the relevant articles of the Personal Status
Code and the documentary evidence adduced by the applicant regarding the law
and customs of Mauritania, that nothing in the evidence gave any clear
indication as to the legality of marriage by proxy in Mauritania.
17 The
IAD further concluded that the solemnization of a marriage by proxy had not
been proven in fact and that the marriage was therefore void. The panel relied
on the lack of any reference to a proxy having represented the applicant in the
"Acte de marriage" or in the excerpt from the registry of marriage
certificates. Furthermore, the applicant did not submit a written proxy.
18 The
confusion noted by the IAD in the "Acte de marriage" with respect to
the role of Tidiane Mohamed Diagana, whose name appears as both witness and
proxy at the time of the marriage, explains why the IAD assigned no probative
value to this document and why it made an adverse finding with regard to the
applicant because the certificate failed to meet the requirements of article 76
of the Personal Status Code.
19 This
Court has previously found that the absence of a proxy document as well as the
shortcomings in a marriage certificate are valid grounds on which a panel may
base its decision not to assign any probative value to a marriage certificate (Ipala v Canada (Minister of Citizenship and Immigration) 2005 FC 472 at paragraph 29, 2005 CarswellNat 898).
20 As
to the applicant's argument that irregularities in the marriage certificate
should not render the marriage void, the IAD's finding was in fact that it was
the lack of evidence of the solemnization of the marriage by proxy that
rendered the marriage void and not the shortcomings in the marriage
certificate, which was just one part of the evidence considered by the IAD.
21 Lastly,
contrary to what the applicant claims, one does not have to find problems with
an official document issued by a foreign state, such as a marriage certificate,
to question its validity, because as the IAD noted, such documents benefit only
from a presumption of validity (Ramalingam v Canada (Minister of Citizenship and
Immigration), 1998 CanLII 7241 (FC) at paragraph 5,
1998 CarswellNat 35).
22 The
IAD's determination that the applicant's marriage is void under Mauritanian
law, and therefore under Canadian law, falls within a range of possible
outcomes "which are defensible in respect of the facts and law" (Dunsmuir, supra, at paragraph 47); it is therefore reasonable.
23 The
parties, although given the opportunity to do so, did not submit any questions
for certification.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the
application for judicial review is
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