By Sukhram Ramkissoon

Canadian immigration law allows a Canadian citizen or landed immigrant to sponsor a spouse so long as the sponsor meets certain requirements. For the purposes of this article, I will discuss a common ground of refusal that some sponsors encounter during their sponsorship application.

For example, if a sponsor is not free to marry his spouse and file a sponsorship application, his application may be refused. Let us look at a recent case in which this particular ground was an issue.  Dev (not his real name) appealed the decision made by a visa officer who refused his sponsorship application for his spouse Meera (not her real name). The visa officer determined that Meera is not a member of the Family Class as defined under Canadian immigration law. Dev filed an appeal with the Immigration Appeal Division (IAD) and the Minister added an additional ground: Dev was not divorced from his first spouse in Canada at the time of his marriage to Meera in Bangladesh and therefore is not eligible to be a sponsor according to the law.

In an appeal hearing, the IAD must first decide if Dev was divorced from his first spouse before he married Meera. If the IAD decides that Dev was divorced from his first spouse, then Meera is not excluded under immigration laws and the matter can then proceed to determine if the marriage between Dev and Meera is genuine and whether the primary purpose of the marriage was for Meera is to obtain status in Canada.

During the interim process, the IAD found that Dev provided several documents to establish on a balance of probabilities that he divorced his first spouse.  He furnished documents from the registrar and two legal opinions which were consistent with the process for Hindus to divorce in Bangladesh. Among the other documents provided, were affidavits. The legal opinions confirmed that affidavits are sufficient for a Hindu couple to divorce in Bangladesh.  

The IAD also found that Dev established on a balance of probabilities that his first marriage was not registered and accepted the opinion of the two lawyers and the Marriage Registrar that there is no legal requirement for a Hindu marriage to be registered in Bangladesh. This was confirmed by the Registrar who verified the same before registering Dev and Meera marriage.

The IAD accepted that Dev and Meera registered their marriage after Meera was interviewed by the visa officer. The Minister’s representative suggested that the registration timing was suspect, which added weight to the argument that Dev was not divorced from his first spouse.

The IAD disagreed and accepted the explanation from Dev that he proceeded to register his marriage to Meera to bolster his argument that his marriage was legal. The IAD member ruled that he found that the marriage between the parties would be legal even if they had not registered it in their country Bangladesh. The IAD accepted the opinion of both lawyers and the registrar that the registration of a Hindu marriage is not required in Bangladesh.

The Minister’s representative pointed to the contradictory answers provided by Meera to the evidence on file. The IAD stated they accept that Meera may not be well versed in the registration process of marriage and prefers the documentary evidence that has been provided by Dev.  They further accept the opinion of the two lawyers and the information from the Registrar about Hindu marriages in general and Dev’s marriage and divorce of his first spouse as well as his marriage to Meera.

The IAD found on a balance of probabilities that there is no evidence of fraud on the part of the parties in this case and ruled that the divorce between Dev and his first spouse would be recognized by Canadian authorities.

As a result, the IAD found that Meera is not excluded as a member of the Family Class and that Dev’s appeal will proceed on the other grounds of refusal outlined by the visa officer under Section 4(1) of the Regulations.

Good luck.

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