Immigration  Matters    Sukhram Ramkissoon

Court rules in  favour of  gay conjugal sponsorship application

The Federal Court of Canada recently set aside a negative decision of the Immigration Appeal Division (IAD)  with respect to a conjugal sponsorship appeal launched by a gay man.

Let us look at some of the pertinent facts of the case.  The sponsor who I will refer to as AP obtained protection in Canada based on his sexual orientation. He identified himself as a gay man.  He then  re-established a relationship with a former university classmate and close friend, who I will refer to as AM, a heterosexual woman.  They decided to meet abroad for several reasons: as a refugee claimant, AP could not return to the country from which he fled persecution for being gay and where AM still resides and AM was refused a visa twice to visit Canada.

Until their reunion, they spoke to each other almost every day. While on their trip, they had unprotected sex after a “night on the town.” AP disclosed to AM that he was HIV positive but that there was a ” low chance” of infecting anyone. Although they tried to have sex again on a few other occasions during the trip, AP had difficulty, given his sexual orientation.

A child, who I will refer to as KP, resulted from that trip and AP and AM decided to commit to each other and to raise the child together as a family unit. There were two subsequent trips to a third country – one while AM was pregnant and another when KP turned two years old. AP and AM kept in touch by Skype and AP provided AM with financial assistance. They considered marrying in a third country. AP made enquiries in three countries but  was advised they could not do so because of  his permanent resident status in Canada.

So finally, they decided that AP would sponsor AM as a conjugal partner, and their child, to come to Canada. At that time, AP first disclosed his sexual orientation to AM. Despite this disclosure, they proceeded with the sponsorship application.

An Immigration Officer with the Canadian Embassy refused the application without an interview. In short, the Officer found that AM was not a conjugal partner of AP, “given the degree of interdependence” between them and hence, the Officer was not satisfied that AM is a member of the family class.  AP then appealed this decision to the IAD..

The IAD dismissed the appeal from the Immigration Officer’s decision, following two days of hearing and found that on a balance of probabilities AM is not AP’s conjugal partner.   AP  then sought judicial review of this decision and argued that the IAD’s decision was unreasonable and procedurally unfair. Subsumed in the question of procedural fairness was the issue of whether the IAD’s decision exhibits a closed mind reliance on stereotypes and the subjective treatment of the evidence.

The judge, in his decision, stated that he agreed with AP that the IAD treated the evidence unreasonably and unfairly, resulting in an unsustainable conclusion.  He also gave a few other reasons citing case laws for granting the judicial review application and specifically stated:

 “I find the fact of their different sexual orientations does not foreclose the possibility of AP and AM establishing that they are in a committed relationship of some permanence. In my view, the IAD unreasonably assessed AP and AM’s relationship before concluding there was insufficient evidence they were in a conjugal relationship. The most egregious error was the IAD’s finding that “…a homosexual man and a heterosexual woman are [not] able to meet the sexual component of conjugal partnership”. As noted in case law, not all factors are necessary for the relationship to be considered conjugal and they may exist in varying degrees, the  judge stated.

The  judge also stated that  AP provided objective evidence, for example, on the existence of mixed-orientation couples, and testified that despite his sexual orientation, he felt love for and commitment to AM that began when they met up abroad and AM became pregnant. The fact of their different sexual orientations also did not foreclose the development of sexual intimacy over time in their case, notwithstanding initial difficulties. When asked at the hearing whether AP and AM are sexually intimate on their trips, AP answered yes. He explained how his mindset shifted “step by step, from vacation to vacation, from more time spent together, … [to] see that it is possible” notwithstanding his orientation.

AP also testified that the problem “technically” can be solved, with sex toys or applications for example, and further explained it is about feelings and whether “you [are] getting all the richness of feelings or  having sex with who you love”.

The  judge stated that the IAD does not acknowledge this evidence, nor consider the possibility that a loving relationship centred on the concept of a joint family unit, regardless of the degree of sexual intimacy, can meet the criteria for a conjugal relationship. Sexual relations are but one aspect – and not even the predominant consideration – in assessing the existence of a conjugal relationship.

The matter was remitted to a different IAD member or panel for redetermination by the  judge. 

Good luck AP and AM.

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.