Not physically present at time of wedding – appeal allowed

By Sukhram Ramkissoon

Sukhram Ramkissoon

A 39-year-old Canadian citizen who I will refer to as Abu was recently successful before the Immigration Appeal Division (IAD).  The negative decision on his sponsorship application made on behalf of his 32-year-old spouse, who is a citizen of Sudan (who I will refer to as Gammy) was quashed and the appeal was allowed.

According to the public facts of the case, this was their first marriage. They met online through Facebook in 2011. Their romantic relationship started in 2014 and in 2017 they began to discuss marriage. The marriage took place on December 12, 2018, in Sudan. Abu was not physically present at the wedding. He was in Canada and was represented by his uncle in Sudan for the wedding. This is called a Proxy marriage.

Abu subsequently sponsored Gammy and the application was refused on the grounds that “at the time of the wedding both parties were not present.” Abu then appealed the same to the IAD and the matter recently came up for hearing. His counsel requested that a Tabesh conversion be considered, as their relationship can also be assessed as a conjugal relationship. This is a case law which allows IAD Members to consider the applicant as another type of family class member aside from the category they applied.  As such, the IAD Member can consider if the applicant does not meet the spouse definition, do they fall in another definition, ie a common-law or conjugal partner?

At Abu’s appeal hearing, both he and Gammy testified about their relationship and that they have always been exclusive and monogamous. They communicated regularly and frequently and shared a deep level of intimacy and closeness. The wedding took place in December 2018 in Sudan. 300 guests attended their wedding, which included immediate family, extended family, and friends, from both sides.

Abu was unable to personally attend the wedding due to work requirements. He explained he was not yet entitled to vacation leave which he only became eligible for after the wedding. He travelled to Ethiopia to meet Gammy in January 2019 for their honeymoon. Their marriage was consummated at that time. Abu travelled to visit Gammy three more times after the marriage: in 2019, 2020, and 2021. They lived together in a rental apartment during each of Abu’s trips.

Abu and Gammy have been viewed as a married couple since their wedding in December 2018. They travelled together as husband and wife without the company of anyone else during their honeymoon. They were viewed as husband and wife by the government border officials during their travels, as well as by hotel staff. Their friends and family have viewed them to be a married couple since their marriage.

Abu testified that he has been providing financial support to his wife even prior to their marriage and the funds are sent on a monthly or bi-monthly basis and he also sends gifts. Abu and Gammy have a child that was born in June 2021 and Abu was present for the birth of their son and cared for him while his spouse returned to work. Abu also sends gifts to his son and provides financial support.  When residing together, they share meals, visit family members, have dinners out, watch movies, and socialize. They live together in a rental apartment when Abu is visiting. They share all household and personal matters as a married couple. They do everything collaboratively.

The IAD Member found that Abu and Gammy were credible witnesses. They testified in a direct, straightforward manner without evasiveness or embellishment. The Member stated that he agreed with the counsel that the evidence was clear, cogent, and convincing in establishing that they are in a conjugal relationship. The evidence further establishes they have been in a conjugal relationship for at least one year prior to the lock-in date of the sponsorship application on June 11, 2020.

 The Member further ruled that the objectives of the Immigration and Refugee Protection Act (IRPA) include family reunification and maintaining the integrity of the immigration system. Applying a Tabesh conversion, in this case, would not be at odds with those objectives. Assessing Abu and Gammy’s relationship as a conjugal relationship does not undermine the integrity of the immigration system as the intention of Parliament behind the refusal ground of section 117(9) (c.1) is not applicable to their circumstances.

Furthermore, Operational Bulletin 613 addresses the discretion of officers to consider whether applicants meet the definition of a common-law partner where marriage was conducted by proxy. This is analogous to a Tabesh conversion. As his counsel noted, if this appeal is dismissed simply based on Abu and Gammy not being together at the time of marriage, it may lead to unfairness and administrative inefficiency. If this was the case, Abu would be forced to begin the sponsorship process anew under the conjugal partner category involving a similar assessment of their relationship as would be conducted under a Tabesh conversion here. This is not an effective or efficient use of time and resources, the Member ruled.

 

The Member further ruled that the refusal is valid under the law, however, Abu has established on a balance of probabilities, that he and his spouse are conjugal partners within the meaning of the law, and that Gammy is a member of the family class and allowed the appeal.

 

Good Luck Abu and Gammy.

 

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, Phone 416 789 5756.