by Sukhram Ramkissoon
Miriam (not her real name) was recently successful at the Immigration Appeal Division (IAD), after a panel member set aside the refusal of her spousal sponsorship application. A visa officer refused her spouse Donald’s (not real name) application for permanent residence. They are both from the Caribbean and were born on the same island.
Here are the summarised facts of her appeal and decision in which I represented the parties: Miriam’s sponsorship application was refused because a visa officer found that her marriage to Donald was not genuine and that it was entered into for immigration purposes. Therefore, Donald was not entitled to be sponsored.
Miriam is a 42-year-old Canadian citizen and has four children ages 20, 18, 15 and 11. The eldest child resides with her grandmother and her younger children reside with her. She is presently attending college and plans to be a social worker. She is employed part-time as a hair stylist.
Donald is a 43-year-old and has five children, ages 17, 13, 10, 7 and the last is 4. He does not have a relationship with his eldest child and his 13-year-old resides with him. His other children reside with their respective mothers, and he works as a painter and a welder.
They were married in August 2017 on another Caribbean Island. This is the second marriage for Miriam and the first for Donald. The sponsorship application was refused following an interview in March 2020 by a visa officer in Trinidad. The basis for the refusal was the following:
– The relationship shifted suddenly from summer “flings” to an engagement and marriage
– The applicant had fathered a daughter with another woman just prior to the marriage proposal
– There is no documented evidence of continuous communication
– The wedding appeared to be rushed
– The application for sponsorship was not filed until a year after the wedding.
The appeal was heard on two separate days, in July 2021 and September 2021. The panel member of the IAD chose to reserve their decision and provided their written reasons last month. The appeal was allowed and in the reasons given, the panel member stated that the appeal presented a confusing conundrum of facts that pointed both to a genuine and non-genuine marriage.
The panel member noted that Donald was not a particularly sophisticated or articulate individual. His knowledge of Miriam’s circumstances was not “what you would expect in a genuine marriage.” He further stated, “As I see it, he has taken a rather casual approach to his relationships with women. I must be mindful of the fact that I am viewing Donald through my own cultural lens. Both Donald and Miriam testified, that Donald’s pattern of behaviour is not unusual in their culture.”
Miriam was an articulate witness, who was able to give clear evidence regarding the development of their relationship. Donald was less articulate and precise. Miriam testified that she met Donald in her country of birth in 2013. They went on two dates, and she returned to Canada. She visited Donald every subsequent summer; the last visit was in August 2020. In her testimony she stated that she was in a casual dating relationship with him until things became serious in 2016. She said they were communicating “day and night.”
Donald gave a very different version of events at his interview. He said that they met in June 2017 and exchanged numbers and that they were engaged in 2018. The date of the engagement was obviously an error as the parties were married in August 2017. Miriam’s explanation for this was that Donald was being interviewed by a “white woman” and he was not used to communicating with people outside of his cultural background and he was very nervous. Donald said the same thing during his testimony, explaining that he was very frightened at the interview and that he couldn’t remember his own birth date, which was consistent with the appeal record.
At the hearing, Donald provided an account of the development of the relationship that was more consistent with that of Miriam. Donald demonstrated accurate knowledge of Miriam’s children, their ages, where they are living, who fathered them, etc.; this was an issue at his interview with the visa officer.
Donald has five children with three different women, none of whom he married or resided with. In the decision, the panel member stated that it appears that Donald takes a casual approach to intimate relationships with women and this raises the question of why he would want to break this pattern and marry Miriam?
The panel member was also concerned that the mother of his last child was pregnant at the time that he proposed to the Miriam. Donald testified that he told Miriam about this child before he proposed and that she was a little upset but came to terms with it. The issue was raised as to why, having fathered five children with three different women, and having never married or resided with any of them, why would he now want to get married? In Donald’s testimony, he stated that the other women drank, “smoked weed” and Miriam is not like that. He liked how Miriam cooks and cleans for him when she visits him, and how he did the same for her. In the panel member’s view, this suggested that Donald gave some thought to Miriam’s character and habits, suggesting that this is a break from his pattern of casual relationships.
The other concerns of the visa officer were addressed by both parties and carefully considered by the panel member who ruled that while borderline, he found on the balance of probabilities, that the marriage is genuine and was not entered into primarily for the purpose of acquiring status or privilege under the Immigration and Refugee Protection Act. The decision has been set aside and the visa office must continue to process the application in accordance with the decision and reasons in this case. Congratulations Miriam and Donald!
Sukhram Ramkissoon is a member of ICCRS and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto. Phone 416 789 5756.