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Agha (Mustapha) v Canada (Citizenship and Immigration), 2008 FC 564 (Link)

Facts:

** Wife of applicant was refugee in Canada, and included M on her application for permanent residency under family class
** M and wife had never met, since she was in Canada and he could not get a visa to visit Canada --- got married in an arranged marriage over the phone
** Visa officer refused application based on the fact that the marriage was in bad faith, in contravention of s. 4 of the IRPR
** Wife had been previously married, had son, and there was little evidence of contact between the couple

Issue(s):

Did the visa officer err in concluding the applicant was not a member of the family class because the marriage was not genuine.

Ratio:

Case does not raise issue worthy of appeal.

Analysis:

Previous marriage: flagging previous marriage constituted a reason for interviewing M. to determine the nature of the marriage, but M.’s absence of knowledge of the previous marriage was not grounds in itself to base a decision of bad faith.

Failure to consider M.’s explanation for not having met: no where in the decision does the officer mention that the wife could not return to Pakistan because of her refugee status --- reliance on the fact that they have not met without considering this fact in unreasonable.

No opportunity to respond to concerns: onus was on M. to show evidence of contact, as he was directed to do --- failure to do so did not trigger an obligation by the officer to make further inquiries about evidence.

Holding:

Decision was unreasonable and should be redetermined by another officer.


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