Expert / Seniors
This case is regarding my elder sister whose Spousal / Family Immigration application was refused by the CIC, behind the reason was that ;
The government of Pakistan has set out in section 7 of the MFLO an administrative process for the registration of Muslim divorce to be overseen and enforced by Union Councils or other local governments. In Canada, divorce proceedings must be conducted in accordance with the Divorce Act of 1985. It states in subsection 22(1): "A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce."
The intent of this section has been interpreted as to require some form of adjudicative oversight to legally recognize a foreign divorce in Canada. This requirement would be fulfilled by the process dictated by the MFLO. In which a notice of "Talaq" divorce must be sent under section 8 of the MFLO to the concerned government office, at which point the government office (union Council) is duty bound to follow the procedure of issuance of notices (the 90 day iddat period) before issuance of dissolution of marriage certificate.
Therefore, whilst a Muslim divorce of Talaq may be considered valid by a Pakistani court despite not following the MFLO administrative process, the correct civil procedure was not followed. In order to be considered valid for the purposes of Canadian immigration, foreign divorce proceedings must be held in accordance with principles of fairness and due process, and in harmony with Canadian public policy. Muslim divorce proceedings in Pakistan must be conducted in accordance with the MFLO in order to be meet this threshold and be considered legally valid for the purposes of determining marital status in Canada.
It is clear that the Sponsor's divorce did not take place according to the MFLO and an idaat period did not take place following his pronouncement of Talaq on 2 February 2018 (he then married the PA only 2 days later). Indeed, it is clear the divorce wasn't registered with the Union Council until 5 September 2019 (well over a year after the sponsor's marriage to the PA). Therefore, the divorce cannot be considered legally valid for the purposes of determining their marital status in Canada, and the sponsor was still considered married to their first spouse at the time of the current marriage. This renders the current marriage legally invalid for the purposes of Canadian law and of the present application and the applicant is therefore excluded from the family class as per R117(9(c)(i) given the sponsor was still considered married at the time of marriage to the PA.
Whilst the relationship between the clients appears bf, the file is refused R2, R117(1)(a) and R117(9(c)(i).
RC-6023 please refusal R2 marriage, R117(1)(a), R117(9)(c)(i) and include following:
In our procedural fairness letter sent to you on 28 March 2023 you were informed of our concerns regarding the validity of your marriage to the sponsor.
Specifically, there were concerns your sponsor was not legally divorced from his first wife prior to your marriage and that you were therefore not legally married to your sponsor. In response, your sponsor has advised that he was legally divorced in Pakistan by way of Talaq and that his divorce was considered effective on 2 February 2018, two days prior to your marriage. He advises that reconciliation was not required in his case and his divorce is considered legal in Pakistan. I have fully considered these submissions and the documents submitted, however I am not satisfied that the sponsor was free to marry you at the time of your marriage.
Senior brothers/sisters who have experienced objections and refusals from CIC, and subsequently relodged their applications, are kindly requested to guide us. Your valuable insights and experiences may assist us in restarting her application and potentially obtaining approval for family class immigration. Additionally, she has faced challenges in obtaining a Temporary Resident Visa (TRV), having applied three times and received refusals based on the concern that she may not return to Pakistan. Any advice or shared experiences on overcoming these hurdles would be greatly appreciated.
This case is regarding my elder sister whose Spousal / Family Immigration application was refused by the CIC, behind the reason was that ;
The government of Pakistan has set out in section 7 of the MFLO an administrative process for the registration of Muslim divorce to be overseen and enforced by Union Councils or other local governments. In Canada, divorce proceedings must be conducted in accordance with the Divorce Act of 1985. It states in subsection 22(1): "A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce."
The intent of this section has been interpreted as to require some form of adjudicative oversight to legally recognize a foreign divorce in Canada. This requirement would be fulfilled by the process dictated by the MFLO. In which a notice of "Talaq" divorce must be sent under section 8 of the MFLO to the concerned government office, at which point the government office (union Council) is duty bound to follow the procedure of issuance of notices (the 90 day iddat period) before issuance of dissolution of marriage certificate.
Therefore, whilst a Muslim divorce of Talaq may be considered valid by a Pakistani court despite not following the MFLO administrative process, the correct civil procedure was not followed. In order to be considered valid for the purposes of Canadian immigration, foreign divorce proceedings must be held in accordance with principles of fairness and due process, and in harmony with Canadian public policy. Muslim divorce proceedings in Pakistan must be conducted in accordance with the MFLO in order to be meet this threshold and be considered legally valid for the purposes of determining marital status in Canada.
It is clear that the Sponsor's divorce did not take place according to the MFLO and an idaat period did not take place following his pronouncement of Talaq on 2 February 2018 (he then married the PA only 2 days later). Indeed, it is clear the divorce wasn't registered with the Union Council until 5 September 2019 (well over a year after the sponsor's marriage to the PA). Therefore, the divorce cannot be considered legally valid for the purposes of determining their marital status in Canada, and the sponsor was still considered married to their first spouse at the time of the current marriage. This renders the current marriage legally invalid for the purposes of Canadian law and of the present application and the applicant is therefore excluded from the family class as per R117(9(c)(i) given the sponsor was still considered married at the time of marriage to the PA.
Whilst the relationship between the clients appears bf, the file is refused R2, R117(1)(a) and R117(9(c)(i).
RC-6023 please refusal R2 marriage, R117(1)(a), R117(9)(c)(i) and include following:
In our procedural fairness letter sent to you on 28 March 2023 you were informed of our concerns regarding the validity of your marriage to the sponsor.
Specifically, there were concerns your sponsor was not legally divorced from his first wife prior to your marriage and that you were therefore not legally married to your sponsor. In response, your sponsor has advised that he was legally divorced in Pakistan by way of Talaq and that his divorce was considered effective on 2 February 2018, two days prior to your marriage. He advises that reconciliation was not required in his case and his divorce is considered legal in Pakistan. I have fully considered these submissions and the documents submitted, however I am not satisfied that the sponsor was free to marry you at the time of your marriage.
Senior brothers/sisters who have experienced objections and refusals from CIC, and subsequently relodged their applications, are kindly requested to guide us. Your valuable insights and experiences may assist us in restarting her application and potentially obtaining approval for family class immigration. Additionally, she has faced challenges in obtaining a Temporary Resident Visa (TRV), having applied three times and received refusals based on the concern that she may not return to Pakistan. Any advice or shared experiences on overcoming these hurdles would be greatly appreciated.