Karanja v. Canada (Citizenship and Immigration), 2018 FC 965 : Federal Court Reviews Spousal Sponsorship Refusal Where Evidence Suggested Earlier Customary Marriage Had Already Been Dissolved

Perpetua Wambui Karanja sought judicial review after the Immigration Appeal Division dismissed her appeal from the refusal of her husband’s permanent residence application. The visa officer concluded that her marriage was invalid because her husband, Mr. Waicigo, remained married to his first wife when he married Karanja. Although a Kenyan court divorce certificate was admittedly fraudulent, the Federal Court found that evidence suggested his first marriage may already have been dissolved under Kikuyu customary law.

Key Principle

Where important evidence in the record contradicts the factual premise underlying an immigration decision, the decision-maker must address that evidence and explain why it is rejected. In determining the validity of a foreign marriage or divorce, the legal effect of customary law may be central. A fraudulent document does not necessarily resolve the underlying legal issue where other evidence suggests that the relevant marriage had already been validly dissolved.

Background

Waicigo married his first wife in 1988 under Kikuyu customary laws and rites. She deserted him in 2000, leaving him with their two children. In 2006, he sought a customary divorce. A chief confirmed that elders met, dissolved the marriage under Kikuyu custom, gave Waicigo their blessings and considered him free to remarry.

Waicigo nevertheless believed he required a Kenyan court divorce certificate before another marriage. He later obtained what proved to be a fraudulent certificate from a lawyer. It was not disputed that he had been victimized by that lawyer and did not knowingly present a false document.

After Waicigo married Karanja in Kenya in 2015, she sponsored him. The visa officer refused the application under subsection 117(1) of the IRPR on the basis that Waicigo was still married to another person. The IAD dismissed Karanja’s appeal.

Court Findings

• Evidence Supported a Possible Valid Customary Divorce

The record contained evidence that Kikuyu elders had dissolved Waicigo’s first marriage in 2006 following his former wife’s desertion. It also included information indicating that Kenyan customary marriages could be dissolved extra-judicially by elders and that judicial divorce was necessary only where a party refused to comply with the customary divorce.

• Fraudulent Certificate Did Not Resolve the Marriage’s Legal Status

The Court acknowledged the fraudulent court certificate complicated the case. However, the central question remained whether Waicigo legally needed a judicial divorce at all. Evidence from the chief, information Karanja received from the Kenyan marriage registrar, and material concerning Kenyan customary law all pointed toward the possibility that the earlier marriage had already ended before Waicigo married Karanja.

• IAD Failed to Explain Contrary Evidence

The Court found that evidence in the record led away from the IAD’s conclusion. At minimum, the IAD was required to explain why that evidence was rejected. Its short reasons did not address the material suggesting the customary divorce could have been effective. The unexplained failure to grapple with this contrary evidence rendered the decision unreasonable.

Outcome

The Federal Court granted judicial review and returned the matter to the IAD for redetermination before a different decision-maker. The Court suggested that Karanja obtain an opinion from Kenyan counsel addressing the customary-law issues identified in the judgment. No serious question was certified.

Case Citation:

Karanja v. Canada (Citizenship and Immigration), 2018 FC 965 (CanLII)