Immigration matters

Sukhram Ramkissoon

Applicants for spousal sponsorship are responsible for reviewing forms for accuracy and completeness of information

I am often contacted by persons whose sponsorship applications are rejected because of their failure to establish that their marriage is genuine, according to Canadian immigration law.

These persons often blame their legal representative for their neglect in either (1) not submitting the correct information on their application forms or (2) not including the relevant documents establishing genuine relationships.  As a result, their applications are refused and they are unable to be reunited with their loved ones in Canada.

In a family class application, which is processed at a visa office abroad, the sponsor has a right of appeal, if a negative decision is made.  The Notice of Appeal is sent to the Immigration Appeal Division (IAD) which will screen the file for an Alternative Dispute Resolution or a full hearing.  In some cases, a sponsor may proceed with both options.  An inland sponsorship refusal is challenged at the Federal Court.

I wish to point out that there are some well-established and objective factors that the IAD has developed to assess whether a marriage is genuine. Those factors, confirmed by the courts, facilitate the task of deciding if a relationship falls within the ambit of the law.  A couple’s behaviour before and during the marriage, the evidence of contact, communication and interaction before and after the marriage, their depth of knowledge of each other, their contact with extended families, their activities of daily life, intermingling of finances, and shared responsibility for the care of children brought into the marriage.

These are all considerations that assist evaluating whether a marriage is genuine. The second test articulated in the said law is, whether the relationship was entered into primarily for the purpose of acquiring any status or privilege under the IRPA, which is self-explanatory. The indications of such intent will be gleaned from examining the circumstances of the marriage or will be exposed incidentally while examining the evidence and testimony about the genuineness of the marriage. An applicant has to meet this test in an application.

So, let’s examine a summarised version of a recent case which was negatively decided by the Immigration Appeal Division with respect to a case in which the sponsor (appellant) blamed her consultant for the errors in the application.

The appellant is from Ethiopia and is 35 years old and was previously sponsored to Canada in 2007. This is her second marriage, and her spouse is 37 years old and this is his first marriage. The appellant has two children from a previous relationship, and they were married in April 2017 in Uganda, where the Applicant was a refugee claimant.

An application to sponsor the Applicant was filed in December 2017 and a procedural fairness letter was sent to the Applicant in July 2018, indicating concerns about the genuine nature of the relationship. In the appellant’s reply to these concerns, additional documents were submitted. In August 2018, based on a review of these documents and the application, the visa officer was not satisfied that the marriage was genuine and/or not entered primarily for the purpose of acquiring status or privilege under the IRPA and consequently refused the application.

The appellant appealed this decision to the IAD and both appellant and the applicant testified at the hearing and additional documentary evidence was submitted. The member ruled that on balance of probabilities, the marriage is not genuine and the case was dismissed.   Throughout the hearing and in their submissions, the parties spoke to the discrepancies identified between testimony and the evidence before the panel.   The discrepancies between the documentary evidence, predominantly the application to sponsor and the testimony of both the appellant and the applicant, they blamed most of these inconsistencies on a consultant.

The appellant argued that most of the inconsistencies were immaterial to a finding a genuineness and were the result of a consultant who assisted her to complete the form due to her challenges in writing and understanding English. She testified that the version of their meeting, as stated in the application, was not correct. Although the application spoke to a connection between the two based on the intervention of a mutual known third part,. the appellant and applicant testified that they had known each other since childhood. This was not the sole discrepancy.

Other material discrepancies noted by the appellant in the application related to the following: proof of communication between the couple – the appellant indicated that she has provided this to the consultant, yet the application contained limited information, predominantly showing missed calls between the couple; and the marriage certificate provided with the application listed an agent who facilitated the marriage arrangement.

The appellant indicated that this person was a  friend, not an agent, and provided an amended marriage certificate to show this change. The application did not align with the appellant’s testimony with respect to the time  when the applicant attended school, became a businessman or his living arrangements in 2014-2017.

The appellant testified that that the consultant took the information from her, he did not ask her to confirm it and told her to submit it, “as is.” She stated that she recognized him as a competent consultant, and it was not until after the refusal that she discovered the changes.  The appellant argued that the consultant bears responsibility for the missing and erroneous information in the application and the inconsistencies that occur between the application, documentation, and testimony.

The appellant stated that the application itself is very specific on dates related to the applicant’s circumstances when he was in Ethiopia and Uganda and  it provides clear particulars on the appellant and applicant and their families and also provides details as to the appellant’s life in Canada.

The panel found that the knowledge of the missing or limited information in the application was not beyond the appellant’s and the applicant’s control. They did not demonstrate due diligence to ensure that the applications were prepared correctly.

The Federal Court confirmed that an applicant is responsible for reviewing any application and ensuring completeness. Therefore, the panel did not accept that the consultant bears responsibility for the missing information and dismissed the appeal based on the evidence that it was not genuine.

SUKHRAM RAMKISSOON is a member of ICCRC and specialises in immigration matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario, Phone 416 789 5756.