By Sukhram Ramkissoon
When a Canadian citizen or permanent resident files an overseas Family Class spousal application, they must meet certain criteria as a sponsor, and if they are found eligible, the application is forwarded to the appropriate visa office for continued processing.
If the visa officer has reason to believe that the marriage was not entered for immigration purposes by interviewing the spouse or by just reviewing the file and determines the relationship is genuine; he/she will approve the application and issue a permanent resident visa to enter Canada. In cases where the applicant does not require a visa, the officer will only issue a Confirmation of Permanent Residence document
In the event the application is refused, the visa officer will notify the applicant and issue a refusal letter indicating the reason(s) for the refusal and notifying the sponsor of their right of appeal to the Immigration Appeal Division (IAD).
Let us look at a recent case in which a visa officer refused a spousal sponsorship application. I will refer to the Canadian citizen (wife) as the “sponsor” and the foreign national as the “applicant”.
On November 3, 2019, the sponsor and the applicant attended a marriage interview in New Delhi, India. In January 2020, they received a letter that the Visa Officer refused the application, finding that the marriage did not satisfy section 4 of the Immigration and Refugee Protection Regulations (IRPR). This section of the law refers to the Visa Officer’s concerns about the applicant’s intentions in entering the marriage.
In the refusal letter, the Visa Officer was concerned about a) the applicant’s intentions in entering the marriage given his nine previous visa applications to Canada; b) his insufficient personal knowledge of the sponsor; c) a lack of compatibility in terms of age and marital history; and, d) the applicant’s credibility based on the secrecy of the marriage and a related police protection order.
The sponsor appealed the decision to the IAD, which ruled in favour of the visa officer’s decision. This couple challenged the IAD decision and sought judicial review and this case was recently heard by the Federal Court of Canada.
The Federal Court ruled that the IAD decision was unreasonable and granted the application for judicial review. Some of the facts are as follows:
The Sponsor is a 49-year-old Canadian citizen, and she has two adult children from her first marriage and her first husband died in 2002. In February 2019, the Sponsor married the applicant who is 32 years old and a citizen of India.
Prior to meeting the sponsor, the applicant applied for temporary resident visas (“TRVs”) to visit Canada and was unsuccessful on nine occasions. These applications were made between October 2013 and June 2018. The couple began their relationship in August 2018 after meeting online through Facebook. They continued to communicate through text messages and phone calls. They first met in person when the sponsor travelled to India in October 2018. They had a private wedding ceremony in India on February 24, 2019, and neither of their families attended the ceremony. Following the wedding, the couple lived together in India for approximately two weeks before the sponsor returned to Canada.
At the judicial review hearing, the Minister submitted that the IAD considered all the evidence and did not ignore that the marriage was genuine. The learned judge in his ruling stated he disagreed, and in his view found that the IAD selectively considered the evidence, focused on details that were not well-founded, and failed to consider evidence that pointed to an opposite conclusion. For instance, included in the evidence was an affidavit from the sponsor’s adult children who stated that their mother told them about her relationship with the applicant a few weeks after meeting him. The affidavit expresses how the children’s initial apprehension about the applicant’s intentions was assuaged once they spoke with their mother about the possibility of marriage; from the way that their mother spoke about the applicant, it was very clear that they built a bond with the applicant.
The judge further stated that he agrees with the sponsor. The IAD placed too much weight on the applicant’s TRV applications and his motivation to come to Canada. The judge also referred to quotes made by his colleague and stated “As aptly stated by my colleague “Most individuals seeking to come to Canada are highly motivated to do so. This says little about whether a particular marriage is genuine.” Simply because the applicant made multiple attempts to visit Canada on a temporary basis does not signal that he married the sponsor for immigration purposes. A review of the evidence showed extensive online communication and affectionate exchanges between the couple before they were married. In a statement from the sponsor, she stated they chatted regularly online, discussing their family, friends, work, fitness, ideas, opinions, their past and every little thing that one can imagine.
Furthermore, the judge also disagreed with the IAD’s finding that the police protection order was obtained to provide an excuse for the lack of family presence at the wedding. The judge stated that he found that the testimonies showed that the couple was concerned their decision to marry could spark an unpredictable response from the applicant’s family.
The judge granted judicial review, set aside the negative decision and returned the matter for redetermination by a different decision maker.
Congratulations and good luck.
SUKHRAM RAMKISSOON is a member of the College of Immigration and Citizenship Consultants and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. M6A 2A4 Phone 416 789 5756.