Manekiya v. Canada (Minister of Citizenship and Immigration)

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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 1: Appearances: Case Name: Manekiya v.
Page 5: Conclusion Page 5 allows for a broa

Manekiya v. Canada (Minister of Citizenship and Immigration)

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