A Pakistani man denied permanent resident status in Canada after an immigration officer discovered he had two wives has won another kick at the can, courtesy of the Federal Court.
It’s not that the court condoned polygamy, but it found that the man’s case was complicated and an immigration officer was being “unreasonable” when they failed to try and understand the circumstances that lead to the man being married to two women at once, for a time.
Qadeer Ahmed’s wife, Jameela Qadeer, who is also from Pakistan, was found to be a refugee in Canada. She included him in her application for permanent residence.
“However, a visa officer found that Mr. Ahmed did not meet the requirements for immigration to Canada, as the officer was not satisfied that his marriage to Ms. Qadeer was valid,” Justice Angus Grant said in a recent decision.
“This was primarily because Mr. Ahmed was also legally married to another woman in South Africa, where he has resided for many years.”
The same officer “also found that the couple were not in a common-law or conjugal relationship, and as such, (Ahmed) could not be considered a family member of his spouse in Canada,” Grant wrote in a decision dated Oct. 30.
“In rejecting the application, the officer also considered humanitarian and compassionate factors, but concluded that (Ahmed’s) situation did not warrant an exemption from the Immigration and Refugee Protection Act.”
The facts of Ahmed’s case are “somewhat unusual,” Grant said in his judicial review of that decision.
“The applicant — Qadeer Ahmed — is a citizen of Pakistan and a resident of South Africa. He is an Ahmadi Muslim, and fled Pakistan for South Africa in 2003 due to the well-documented persecution of Ahmadis in Pakistan,” said the judge.
He initiated a claim for asylum, “and not long after his arrival, he met Ms. Johanna Lindiwe Masemola, his first wife,” Grant said.
Mr. Ahmed was also legally married to another woman in South Africa, where he has resided for many years
The two married in a civil ceremony twenty years ago and Ahmed “cancelled his asylum permit and instead applied for and received a spousal permit,” said the judge’s decision.
“According to (Ahmed), this relationship ended shortly after it began, in February 2005.”
But he kept living in South Africa on the spousal permit, and didn’t file for divorce until January of 2022.
Ahmed “acknowledges that he did not file for a legal divorce sooner because he had cancelled his asylum status, because he remained fearful of returning to Pakistan, and because his immigration status was dependent on the marriage,” Grant said.
“According to (Ahmed), he has had zero contact or relationship with his first wife since February 2005, beyond the formalizing of their divorce in January 2022.”
His family arranged his marriage to Qadeer, his second wife, in 2006, said the decision, which notes she is also an Ahmadi Muslim.
“The legal wedding (or Nikah) was conducted by proxy on July 14, 2006, as (Ahmed) was still living and working in South Africa.”
Ahmed told Qadeer “about his existing marriage shortly after their in-person wedding festivities (or Shadi) in Pakistan on March 23, 2007,” said the decision. “After the honeymoon, Mr. Ahmed returned to South Africa while Ms. Qadeer remained in Pakistan.”
Ahmed told the court he visited Qadeer “as often as he could, but could not return permanently due to his ongoing fears of persecution.”
Their daughter was born in 2010.
South Africa refused Qadeer a visa to visit Ahmed in 2016.
But she obtained visas to visit Canada the following year for herself and their daughter, Alia. “They arrived in Canada on November 28, 2017, and initiated refugee claims. Not long after their arrival, on March 9, 2018, Abeer Ahmed was born, who is the son of (Ahmed) and Ms. Qadeer.”
Their claims were granted, but Ahmed’s application for a Canadian visa “to be reunited with his family,” was refused.
It is unassailably clear that (Ahmed) has been in a monogamous relationship with Ms. Qadeer for many years
That’s when Qadeer included Ahmed in her application for permanent residence.
An immigration officer sent him a letter in the fall of 2022 setting out concerns regarding the validity of his marriage to Qadeer.
Ahmed responded that “his second marriage was valid under Pakistani law,” and alternatively, “there were sufficient humanitarian and compassionate grounds to justify an exception to any ineligibility arising from the previous marriage.”
Ahmed also stressed his marriage to Qadeer was a “legitimate conjugal relationship … and, as such, he is a valid member of the family class.”
His application for permanent resident status was refused.
“The officer found that they were not satisfied that the marriage was valid under both the laws of Canada and the laws of the jurisdiction where it took place — as (Ahmed) was already married to another woman at the time of the second wedding, and as the wedding took place by proxy.”
The same officer ruled Ahmed “did not meet the definition of a conjugal partner, as he had not combined his life with Ms. Qadeer and had been living apart from her in South Africa, on a spousal visa based on his first marriage.”
The officer’s notes say Ahmed “could not be considered a ‘spouse’ of Ms. Qadeer, since he remained married to his first wife at the time of his marriage to Ms. Qadeer, making the marriage polygamous and thus not valid under Canadian law.”
The officer rejected Ahmed’s argument “that his first marriage was not seen as valid because it was not completed through Islamic traditions, noting that the first marriage was legally valid until the divorce in January 2022.”
The officer decided Ahmed didn’t meet the definition of a common-law partner, because he hadn’t lived with Qadeer for a year. He also couldn’t be considered a conjugal partner, the officer said, because Ahmed and Qadeer “are not interdependent — they have not lived together for an extended period of time during their marriage and have not combined their lives physically (or) socially.”
The judge sent Ahmed’s case back to another immigration officer for redetermination.
“On the evidence, it is unassailably clear that (Ahmed) has been in a monogamous relationship with Ms. Qadeer for many years; one defined by the intertwining of their lives, the birth of their children, and the co-mingling of their families and finances,” Grant said.
“While they have not lived together for significant periods, the evidence before the officer explained with convincing clarity, why this was the case.”
The judge noted the “couple’s efforts to be together were foiled on two occasions by visa refusals — one South African, and one Canadian.”
The Canadian immigration officer’s “failure to meaningfully engage” with evidence that the couple was in a conjugal relationship was “unreasonable,” said the judge.
“I also find that the officer’s statement that (Ahmed) has ‘chosen to live apart’ from Ms. Qadeer (and his children) to be a concerning distortion of the evidence in the record,” Grant said.
“Reading between the lines, I would suggest that the understandable concern with (Ahmed’s) first marriage distracted the officer from the core determination, which was whether (Ahmed) had established that he was in a genuine, conjugal relationship with Ms. Qadeer.”
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