Rejection of spousal application by visa officer set aside by immigration appeal division


By Sukhram Ramkissoon

Sukhram Ramkissoon

I recently represented a 58-year-old Muslim Cleric who was successful in having the Immigration Appeal Division (IAD) set aside the refusal of his sponsorship for his 38-year-old spouse.

For the purposes of this article, I will refer to the sponsor as Alim and his spouse as Fatima. Alim and Fatima were married in November 2018 in Nigeria; Alim subsequently filed a Family Class Sponsorship application on Fatima’s behalf which was refused by the visa officer.

The grounds of refusal were that the officer was not satisfied that the marriage was genuine or that it was not entered into primarily for the purpose of acquiring status under the Immigration and Refugee Protection Act (IRPA); secondly, it was not valid. There were other concerns such as age differences, compatibility etc.

Upon receipt of the refusal letter, Alim immediately retained my firm to initiate appeal proceedings with respect to the refusal of his application. His appeal recently came up for hearing before the IAD and I filed several documents establishing that his marriage is genuine and legal.

At the appeal hearing, both parties testified that this was the first marriage for Fatima who has one child with Alim born in 2019, and she was also pregnant with a second child at the date of the appeal hearing. Alim was previously married to his first wife in 1998. They had three children and were divorced in 2013. Family members introduced them in early 2018. Alim traveled to Nigeria, and they underwent a customary Islamic marriage in November 2018. The marriage was registered with the Nigerian civil authorities and the sponsorship application was filed in July 2019.

Fatima was interviewed by a visa officer in September 2021 and the officer had several concerns about the genuineness of the marriage. He was unsure if the marriage was legally valid and believed that Fatima had little knowledge of her husband and refused the application. As to the legality of their marriage, Alim and Fatima underwent a second civil marriage ceremony in 2021.

The IAD panel found Alim and Fatima to be credible and that both were direct and forthcoming in their testimony and that there were no significant discrepancies. Counsel for the Minister was also satisfied that their evidence under oath should be accepted.

In allowing the appeal, the panel stated that “as for marriage genuineness, the existence of a child is strong evidence favouring a finding that the law that governs the genuineness of marriages is not applicable.”  The panel also quoted case laws which stated that the birth of a child will not necessarily be conclusive evidence of the genuineness of a relationship, but where there is no question of paternity it must be viewed as evidence that favours a finding of genuineness.

Counsel for the Minister was also satisfied that Alim and Fatima’s relationship was genuine and was not entered into for immigration purposes.

The panel ruled that both parties were credible witnesses and found that the parties were in a conjugal partner relationship at the time of the sponsorship, that the relationship is genuine, and that their relationship was not entered into primarily for immigration purposes. While their 2018 nuptials may or may not be legally valid, it is agreed that they were legally married in 2021 and allowed the appeal.

Good luck and congratulations to Alim and Fatima, on finally being permanently reunited in Canada.

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