Manekiya v. Canada (Minister of Citizenship and Immigration)

Appearances:
Case Name:
Manekiya v. Canada (Minister of Citizenship and Immigration)
Between
Parvez Ali Husein Manekiya, Appellant(s), and
The Minister of Citizenship and Immigration, Respondent
[2011] I.A.D.D. No. 1624
[2011] D.S.A.I. no 1624
IAD File No. TA9-20198
Client ID No. 4338-1543
Immigration and Refugee Board of Canada
Immigration Appeal Division
Toronto, Ontario
Panel: D.J.T. Mungovan
Heard: October 3, 2011.
Oral decision: October 3, 2011.
Released: October 7, 2011.
(20 paras.)
Counsel for the Appellant(s): Matthew Jeffery, Barrister and Solicitor.
Counsel for the Minister: Millie Hrnjez.
Reasons and Decision
SPONSORSHIP
REASONS FOR DECISION
Page 1

Introduction
Page 2
1 The appellant, Parvez Ali Husein MANEKIYA, appeals from the refusal of an application for
a permanent resident visa made by the applicant, Zahera Parvez Manekiya. The appellant married
the applicant and sponsored the applicant as a member of the family class. The application was refused
because a visa officer determined that the marriage is not genuine and was entered into primarily
for the purpose of acquiring status under the Immigration and Refugee Protection Act
(IRPA). 1
Decision
2 After hearing the testimony of the appellant, counsel for the respondent advised that the respondent
was consenting to allow the appeal. I considered the respondent's position alongside all of
the evidence and allowed the appeal with reasons to follow. These are those reasons.
Issue
3 At the time of the refusal section 4 of the Immigration and Refugee Protection Regulations
(the Regulations) read as follows:
4. For the purposes 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 Act. 2
4 Effective September 30, 2010 section 4 of the Regulations was amended and section 4(1) is
the new provision dealing with "bad faith" marriages, common-law partnerships and conjugal partnerships.
It reads as follows:
4. (1) For the purposes of these Regulations, a foreign national shall not be considered
a spouse, a common-law partner, or a conjugal partner if the marriage,
common-law partnership, conjugal partnership
(b) is not genuine. 3
(a) was entered into primarily for the purpose of acquiring any status or
privilege under the Act; or
5 Thus, under section 4(1) of the Regulations as it reads at the time of this hearing before the
Immigration Appeal Division (IAD) to succeed on appeal the appellant had to prove that the marriage
was not entered into primarily for the purpose of the applicant gaining any status or privilege
under the IRPA and that it is genuine. To dismiss the appeal I had to find that the marriage was entered
into primarily for the purpose of acquiring any status or privilege under the IRPA or that it is
not genuine. I have considered the decision of the Federal Court in Elahi v. Canada (Minister of
Citizenship and Immigration), 4 which applied former section 4 of the Regulations, but in that case
the decision of the IAD was made before September 30, 2010, and the referral back to the IAD as a
result of a judicial review properly required that the former section 4 of the Regulations continue to
apply to that proceeding. In the present case, the hearing before the IAD is subsequent to the enactment
of subsection 4(1) of the Regulations.

6 The advantage sought in spousal appeals is entry to Canada and the granting to the applicant
of permanent resident status as a member of the family class.
Background
7 Born in India, the appellant is 37 years old and a citizen of Canada.
Page 3
8 The applicant is 32 years old and is a citizen of India. Prior to her marriage to the appellant,
she was married for approximately three years when her former husband died. She has two children
from her prior marriage: Susan Ali Manekiya, age 11 and Zainab Ali Manekiya, age 9. She and the
appellant have a daughter, Fatima Parvez Manekiya, born December 30, 2009. Fatima is 22 months
old.
Analysis
9 The appellant and applicant married on December 30, 2006. They completed and submitted a
sponsored application for permanent residence under the family class category to the High Commission
of Canada in New Delhi. In processing this application, a visa officer was unable to interview
the applicant. Some of the concerns of the visa officer had are described in the refusal letter
dated September 30, 2009 as follows:
The applicant and the appellant are incompatible in marital status and education;
the appellant is substantially more educated than the applicant;
there was no evidence of the marriage on file and the proof of marriage is unsatisfactory;
the description of how the appellant and the applicant met for the first time does
not seem credible as the appellant did not show in his sponsor questionnaire
having stayed at the applicant's place of residence when they allegedly met;
the post marriage outing photographs have all been taken on one day and appear
posed for the purpose of this application; and
there is no proof of communication between January 2007 and June 2008.
10 Appeals before the IAD are hearings de novo and, therefore, not limited to information received
by the visa post in processing the initial permanent resident application. The appellant bears
the burden of proving his case on a balance of probabilities.
11 The appellant testified with the benefit of counsel and the respondent appeared by counsel.
The appellant provided two bundles of documents in support of the appeal.
12 There exists a presumption in law that sworn testimony should be considered truthful, unless
there is good reason to doubt its veracity. 5 Inconsistencies and implausibilities may be taken into
consideration in assessing the credibility of their evidence, in addition to its rationality and common
sense. 6 I also note the following statement of Justice Muldoon in the Valtchev v. Canada (Minister
of Citizenship and Immigration), 7 which, although a case involving a claim to refugee status, would
seem applicable to any immigration matter:

Page 4
A tribunal may make adverse findings of credibility based on the implausibility
of an applicant's story provided the inferences drawn can be reasonably said to
exist. However, plausibility findings should be made only in the clearest of cases,
i.e., if the facts as presented are outside the realm of what could reasonably be
expected, or where the documentary evidence demonstrates that the events could
not have happened in the manner asserted by the claimant.
13 In this case, it was the visa officer's concerns that were the focus of the evidence and the respondent's
cross-examination and submissions at this de novo hearing. The visa officer's decision
was not, in the circumstances, unreasonable given the information before the officer. However, I
found the appellant to be a credible witness. His testimony was consistent and forthright. He provided
a detailed and entirely plausible description of the development of his relationship with the
applicant. Indeed, I found him to be quite compelling and, regardless of the presumption of truthfulness,
have no hesitation in finding that he has been honest in his testimony.
14 The appellant provided a credible account of the development of his relationship with the
applicant. Further, I was satisfied with the evidence that speaks to ongoing communication between
appellant and the applicant and their future plans together. In particular, after the appellant married
the applicant and returned to Canada in early 2007 he obtained a project in the United States of
America (USA) and went to Rockville, Maryland in November 2007 to work. The applicant and her
two children applied for and were granted visas to unite with the appellant in the USA and ever
since June 2008 they have been living together as a family.
15 Although the visa officer was concerned with the proof of marriage and was correct that the
certificate issued by the temple was not adequate, the applicant was able to obtain a passport issued
by the Indian government based upon the certificate of registration of marriage. The applicant's
passport shows the appellant as her husband. In these circumstances, I am satisfied that the marriage
in India was lawful.
16 The appellant said the applicant did not attend her interview in June 2009 because she was
ill due to her pregnancy. Fatima, their daughter of 22 months, was born six months later in the USA.
17 Regarding the visa officer's concern with respect to the difference in education between the
appellant and the applicant, the appellant also said that he views the applicant as knowledgeable
based upon real life experiences, though she lacks formal education.
18 I find the photographs and communication records submitted in this appeal to be convincing
evidence of an intimate relationship between the appellant and applicant. In this case, the testimony
of the appellant and the documentary evidence were sufficient to persuade me of the bona fides of
their relationship and that the marriage was not entered into primarily for the applicant to gain status
under IRPA.
19 I agree with counsel for the respondent that it was not necessary to have the applicant to testify
by teleconference. In the Mann v. Canada (Citizenship and Immigration) 8 , Member Stein commented
as follows:
... By focusing the legal inquiry on the broad question of whether the marriage is
genuine, I believe Parliament intended a shift away from a narrow and potentially
myopic focus on the intentions of the applicant at the time of the marriage. This

Conclusion
Page 5
allows for a broader and more global assessment. The focus can be on the shared
intentions of both parties to the relationship -- as adduced by the evidence in its
entirety at the de novo hearing. As such, more often than under the former Regulations,
it is my view that in an appeal under IRPA, the testimony of the appellant
alone can suffice to persuade the panel of the bona fides of the intentions of both
the appellant and applicant.
20 The appellant has shown that his marriage to the applicant is a genuine one and was not entered
into primarily for the purpose of acquiring any status or privilege under the IRPA. The appeal
is therefore allowed.
NOTICE OF DECISION
The appeal is allowed. The officer's decision to refuse a permanent resident visa is set aside, and the
officer must continue to process the application in accordance with the reasons of the Immigration
Appeal Division.
D.J.T. Mungovan
October 7, 2011
cp/e/qlspi
1 S.C. 2001, c. 27, as amended.
2 SOR/2004-167, section 3.
3 SOR/2004-167, s.3 as amended September 30, 2010.
4 2011 FC 858.
5 Maldonado v. Canada (Minister of Employment and Immigration), [1980] 2 F.C. 302
(C.A.).
6 Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415
(F.C.A.)
7 [2001] F.C.J. No. 1131, at paragraph 7.
8 2005 CanLII 56894 (I.R.B.), at paragraphs 13-14.