There several pathways of remaining in Canada permanently.  Spousal sponsorship is one of them.  This is when a foreign national marries a Canadian or permanent resident.  Those who are in a conjugal relationship or co-habits with a Canadian citizens or permanent resident for a minimum  duration of time also qualify.  The evaluation of the permanent residence application subject these relationships to genuineness tests and a determination on whether the primary reason was for the foreign national to obtain a privilege or status under the immigration legislation.  This is the focus of our dialogue today.  What is the content of these analysis? Are there pitfalls that couples should watch out for?

 Episode Links… 

Gurmel Singh Mansro v. Canada (Citizenship and Immigration), 2007 CanLII 49711 (CA IRB)

Immigration and Refugee Protection Regulation References:

1. R4(1)

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The Transcript

Episode 12 – OK Cupid! You Are a Permanent Resident

This is a transcript of The Immigrant Compass Podcast episode 12.  It originally aired on October 12, 2016.

I

…At issue today are various circumstances that can lead to a spousal applicant being excluded as a member of the family class.  For those who are not family with what family class means for purposes of Canadian immigration, it is a prescribed group of people or persons who may become permanent residents on the basis of their membership of this class in relation to a sponsor.  Naturally, their sponsor is a Canadian Citizen or permanent resident.  Various relationships are eligible, they include:

(a) the sponsor’s spouse, common-law partner or conjugal partner;

(b) a dependent child of the sponsor;

(c) the sponsor’s mother or father;

(d) the sponsor’s grand parents.

Our focus today are on those who have the most intimate relationship with their sponsor: their spouse, common law partner or conjugal partner.  We are assessing the quality of these relationship.  The Regulation provides that a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a sponsor, if the marriage, common law partnership or conjugal partnership:

• was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
• is not genuine

Two questions comes to mind.

1. What does this mean in practice?
2. At what stage is the nature of the relationship assessed?

Let consider the second point first.  At what stage in the application process  is the nature of the relationship assessed?

It is worth noting that this provision was written in the present tense and must be considered in conjunction with Regulation 121 of the Immigration and Refugee Protection Regulation (“IRPR)”.  This regulation requires an applicant to be a family member of their sponsor both at the time the application is made and at the time a decision is made on their immigration application.

Nonetheless, case law show that if there is evidence, at any stage during the processing or consideration for an applicant’s application, that the relationship is not genuine or evidence that it was entered into primarily for the purpose of acquiring any status or privilege under the legislation, the application is often refused.

Consequently, since we are talking of a continuing and subsisting relationship, genuineness determination or scrutiny can be undertaking at anytime: from when the application for sponsorship is submitted to when the permanent residence visa is issued.  Those who got hitched for the right reasons would like to think that their relationship is genuine and that it was not entered into for the primary purpose of acquiring status or privilege under the immigration legislation.

So!

1. How is genuineness determined?
2. How does the authorities determine whether or not a spousal relationship was entered into primarily for the purpose of acquiring a status or privilege under the Act?

The genuineness of the marriage is based on a number of factors. According to the Immigration Appeal Division Tribunal in the 2005 case of Chavez Rodrigo.  These factors “are not identical in every appeal as the genuineness can be affected by any number of different factors in each appeal. They can include, but are not limited to the following factors:

• the intent of the parties to the marriage,
• the length of the relationship,
• the amount of time spent together,
• conduct at the time of meeting,
• at the time of an engagement and/or the wedding,
• behaviour subsequent to a wedding,
• the level of knowledge of each other’s relationship histories,
• level of continuing contact and communication,
• the provision of financial support,
• the knowledge of and sharing of responsibility for the care of children brought into the marriage,
• the knowledge of and contact with extended families of the parties,
• as well as the level of knowledge of each other’s daily lives.

All these factors can be considered in determining the genuineness of a marriage, common law or conjugal relationship.

As for the test for determining whether the relationship was entered into primarily for the purpose of acquiring any status or privilege, it is worth focusing on the word “primarily”.  Since immigration is probably a factor, the issue is whether it is the primary factor.  In the case of Gavino it was concluded that the purpose of the marriage was to facilitate or permit sponsorship of the applicant’s children.  This was a sufficient for a refusal, even though the intended beneficiary was not the applicant, it was regarded to have been entered into primarily to acquire a privilege under the Act.

In Tran, the tribunal was of the view that while the intentions of both spouses will be examined, it is the intention of the applicant that is conclusive.  This is not surprising, since the applicant is the one who wishes to come or remain in Canada.  I ought to be a millionaire by now if I received a dollar for every time that I tried to persuade some of those who approach of counsel on this point.

Coming up, we going to consider how the judicial system dealt with various factors in determining genuineness and/or primary consideration in entering into a spousal relationship.

II

Today we are focusing on circumstances that can lead to the exclusion of a Spousal Applicant from permanent residency, hence the title – OK Cupid! You Are a Permanent Resident

So how has our judicial system dealt with the known variety of factors in determining genuineness and/or primary consideration in entering into a spousal relationship? In the case of Mansro, in concluding that the relationship was not genuine, the tribunal noted in paragraph 17, that:

“In my view there is insufficient credible and reliable evidence before me upon which to conclude that this is a genuine husband-wife relationship.  The lack of credible evidence which goes to the question of the genuineness of the relationship is also relevant to the question of whether this marriage was entered into primarily for the purpose of the applicant gaining immigration status to Canada.  When I add together the lack of credible evidence indicating genuineness of the relationship with the circumstances surrounding the marriage of the parties I conclude that the applicant did enter this marriage primarily for the purpose of gaining some status or privilege under the Act.”

In evaluating the quality of a relationship, let consider five common themes in the case law.

1. Take inconsistent or contradictory statements often made by the applicant and their sponsor: This does not look good for a couple whose relationship is under consideration, as it is difficult to ascertain what is actually going on in the relationship. Couples ought to be consistent about the following:
   1. their shared experiences such as their knowledge of each other;
   2. their shared history;
   3. the nature, frequency and content of communications between them;
   4. any financial support and
   5. any previous attempt by the sponsored spouse to gain admission to Canada.

It is a question of fact. Since by its nature relationships are private, the only way to ascertain this type of fact is to make inferences.  So where there are inconsistent or contradictory statements, determination will often be made by unfavourable inferences.

1. Previous immigration history is relevant but not conclusive. For example getting married when removal from Canada is imminent, does not by itself support a conclusion that the marriage is not bona fide.  Evidence of a finding that a previous marriage was entered into for immigration purpose does not in itself support a finding that a subsequent marriage is also entered into for immigration purpose.

1. Cultural and religious backdrop. In Khan, the court was of the view that the genuineness of a spousal relationship must be examined from the eyes of the parties themselves, against the cultural backdrop in which they have lived.  The religious context is also important.  The cultural and religious context will determined how the following is considered:

1. Arranged marriages
2. Exchange of gifts and financials support.
3. Contact between the couple and their respective in-laws; the presence of members of both families at marriage ceremonies and associated celebrations such as engagement parties etc.

1. Compatibility – There appear to be a consensus that certain factors provide a valid basis for holding that a relationship is incompatible. The factors include differences in age, customs or language and education.  So watch out! Big brother immigration is playing ok cupid here.
2. Mutual Interests: There are several indicators to determine the mutual interests of couples.  I think the compatibility factors of age, customs or language and education may play a role here as well.  We are going to review some of these.  Clearly the more the couple know about each other the better.  However, the extent of the knowledge that couples have of one another will be greatly impacted depending on whether or not they marriage is arranged.  This is factored into the evaluation by the Immigration Officers.
   1. Contact between the couple is one indicator of mutual interest. Did the sponsor and applicant keep in touch and avail themselves of opportunities to spend time together? What is the quality of time spent together?  This will includes the usual such as evidence of:
      1. expressions of love and affection.
      2. communication, cohabitation,

• consummation of the marriage; and

1. the sponsor’s willingness to move countries in the event of an unsuccessful appeal;

1. Birth of a Child is another area of mutual interest. It is generally agreed that the existence of a child will be accepted as proof of a genuine spousal relationship unless there were exceptional circumstances as in the case of Mansro.  In this case, the birth of their child was not persuasive to the determination that their relationship was not genuine.

In reality expressed in the Mansro is a good illustration of how all the factors we have touched on come together from the perspective of the tribunal.  We begin with the grounds of refusal.  The visa officer was concerned about the genuineness of the marriage because:

•      The parties appeared to be incompatible and the applicant did not provide sufficient explanation as to why she waited until age 30 to marry, and why she would marry a man with less education who was also divorced with two children;
•      Important family members from both sides, including family living in India, did not attend the wedding;
•      The applicant had insufficient knowledge of her sponsor and his life in Canada; and
•      The applicant’s prior attempts to come to Canada, first as a dependent of her parents and then in a subsequently refused visitor application, indicate her strong desire to come to Canada.

They appealed.  To succeed, they must show either that the marriage is genuine or that it was not entered into primarily for the applicant to gain privilege or status under the immigration legislation.  The Tribunal concluded that the applicant and her sponsor did not discharge their burden of proof.

The inconsistent evidence between the three witnesses in the case regarding when the marriage talks began, where these marriage talks took place, and when the sponsor and the applicant agreed to the match undermined the credibility of the evidence presented to explain the genesis of their relationship…    Another striking area of inconsistency between the sponsor and the applicant was their evidence surrounding the death of the sponsor’s father.   Another significant inconsistency between the parties surrounded evidence regarding the birth of their child. Typically the existence of a child of a marriage is an important factor which must be considered, and would be indicative of a relationship of some substance. However, the existence of a child of the marriage is not determinative of the genuineness of the marriage. In this case, the lack of credible evidence from the sponsor and applicant was held to be so striking that it overwhelms the evidence that the couple has had a baby. This was particularly true given their striking diversities of testimony surrounding the recent birth of their child. It was the evidence of the sponsor that the applicant had no problems with her pregnancy and had the baby by caesarean section on June 6, 2007.  The sponsor did not know the correct due date of the baby, did not know whether the caesarean section surgery had been scheduled or not, did not know the name of his wife’s doctor, and did not know why she had changed doctors even though there was a very clear and logical reason for that change.

“These were most telling, as they revealed that the parties have not engaged in the meaningful exchange of information which is in the nature of a husband and wife relationship.  Showing that there has not been an exchange of information at a depth which indicates a genuine spousal relationship.”

So whether you subscribe to this reality of OK CUPID role of immigration authorities, when a spousal application is before there, it is the reality.  Your relationship will be examined for genuineness and primary purpose.  Beware of:

1. Inconsistent or contradictory statements
2. Be sure to let you mutual interest shine in your expression of love and affections as well as all other areas of your relationship.

I hope you felt informed, inspired and connected

This is why we are here.  It is why you are here.  Clock in often for even more relevant insights to be informed, inspired and connected.  Keep the feedback coming on www.facebook.com/theimmigrantcompass or twitter: @ufuomaof