Amin v. Canada (Minister of Citizenship and Immigration)

• Jurisdiction: Federal Jurisdiction (Canada)
• Court: Federal Court (Canada)
• Judge: Barnes, J.
• Citation: (2008), 322 F.T.R. 293 (FC),2008 FC 168
• Date: 31 January 2008

Amin v. Can. (M.C.I.) (2008), 322 F.T.R. 293 (FC)

MLB headnote and full text

Temp. Cite: [2008] F.T.R. TBEd. FE.015

Tariq Amin (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1293-07; 2008 FC 168)

Indexed As: Amin v. Canada (Minister of Citizenship and Immigration)

Federal Court

Barnes, J.

February 8, 2008.

Summary:

Amin married in Pakistan in 1989. In 1993, the marriage was dissolved in Pakistan in accordance with the Islamic pronouncement of talaq, a dissolution by the husband's declaration. Amin remarried in 2002. Amin applied to sponsor his second wife as a permanent resident in Canada. The application was refused. The Appeal Division of the Immigration and Refugee Board dismissed Amin's appeal. Amin sought judicial review.

The Federal Court dismissed the application.

Aliens - Topic 1287

Admission - Immigrants - Sponsorship - Members of the family class - Amin married in Pakistan in 1989 - In 1993, the marriage was dissolved in Pakistan under the Islamic pronouncement of talaq, a dissolution by the husband's declaration - Amin remarried in 2002 - When he attempted to sponsor his second wife as a permanent resident, a question arose regarding the validity of his 1993 divorce - The Lahore High Court declared that, while the 1993 divorce was "effective in Shariah", the talaq divorce was not registered under the Muslim Family Law Ordinance (1961) (the Ordinance) until July 30, 2005, and became effective on that date - Amin's sponsorship application was refused - The Appeal Division of the Immigration and Refugee Board (the Board) dismissed Amin's appeal - Amin sought judicial review - The Federal Court dismissed the application - Amin's failure to comply with the Ordinance rendered his 1993 talaq divorce invalid for other than religious purposes in Pakistan - The Lahore High Court clearly stated that the 1993 divorce was made effective under the Ordinance on July 30, 2005 - The Board's conclusion that Amin had not proven the validity of his 1993 divorce was reasonable - Further, the court expressed "serious reservations about the appropriateness of recognizing extra-judicial divorces" of this sort - The Divorce Act required some form of adjudicative or official oversight before Canada would recognize a foreign divorce - The apparently unilateral, extra-judicial talaq divorce did not meet Canadian notions of divorce and could not be recognized here - Because Amin was still married to his first wife when he remarried, his application to sponsor his second wife was statutorily barred.

Conflict of Laws - Topic 2121

Family law - Divorce - Recognition of foreign decrees - General - [See Aliens - Topic 1287 ].

Family Law - Topic 3985

Divorce - Foreign decrees - Recognition of - In Canada - [See Aliens - Topic 1287 ].

Cases Noticed:

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268; 2002 SCC 3, refd to. [para. 9].

Khosa v. Canada (Minister of Citizenship and Immigration) (2007), 360 N.R. 183; 2007 FCA 24, refd to. [para. 9].

Quazi v. Quazi, [1979] 3 All E.R. 897; [1980] A.C. 744 (H.L.), refd to. [para. 13].

R. v. Secretary of State for the Home Department; Ex parte Fatima, [1986] 2 All E.R. 32 (H.L.), refd to. [para. 13].

Schwebel v. Ungar, [1965] S.C.R. 148; 48 D.L.R.(2d) 644, dist. [para. 16].

Bhatti v. Canada (Minister of Citizenship and Immigration), [2003] I.A.D.D. No. 519, disagreed with [para. 17].

Chaudhary v. Chaudhary, [1984] 3 All E.R. 1017 (C.A.), refd to. [para. 19].

Indyka v. Indyka, [1969] 1 A.C. 33 (H.L.), refd to. [para. 21].

Orabi v. El Qaoud (2005), 12 R.F.L.(6th) 296; 2005 NSCA 28, refd to. [para. 22].

Canada (Minister of Citizenship and Immigration) v. Subala (1997), 134 F.T.R. 298; 73 A.W.C.S.(3d) 315 (T.D.), refd to. [para. 26].

Counsel:

Wennie Lee, for the applicant;

Modupe Oluyomi, for the respondent.

Solicitors of Record:

Lee & Company, Toronto, Ontario, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on January 31, 2008, by Barnes, J., of the Federal Court, who delivered the following reasons for judgment at Ottawa, Ontario, on February 8, 2008.