SPOUSAL SPONSORSHIPS AND APPEALS
The overriding issue in “spousal sponsorships” is the question of the genuineness of the marriage. Clients often ask, “ we have a genuine relationship” but how do we prove it? First, you should understand that the following provision of the Immigration and Refugee Protection Regulations defines what is meant by a “non-genuine relationship”;
Bad faith
4 (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership
(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) is not genuine.
This is the primary issue that is being looked at when assessing spousal sponsorships, whether inland or overseas. This is what is being examined at an interview, and if the definition is not met, it is the primary reason for the refusal of spousal cases. Overseas sponsorships have the right to Appeal the refusal to the Immigration Appeal Division. Consequently, much of the law that speaks to how a genuine relationship is demonstrated comes from decisions at the Immigration Appeal Division. The jurisprudence from these cases is applicable to any spousal application.
An often cited case which illustrates what is looked at is Chavez :
“The genuineness of the marriage is based on a number of factors. They are not identical in every appeal as the genuineness can be affected by any number of different factors in each appeal. They can include, but are not limited to, such factors as the intent of the parties to the marriage, the length of the relationship, the amount of time spent together, conduct at the time of meeting, at the time of an engagement and/or the wedding, behaviour subsequent to a wedding, the level of knowledge of each other’s relationship histories, level of continuing contact and communication, the provision of financial support, the knowledge of and sharing of responsibility for the care of children brought into the marriage, the knowledge of and contact with extended families of the parties, as well as the level of knowledge of each other’s daily lives. All these factors can be considered in determining the genuineness of a marriage.”
Chavez v. M.C.I. (2005), IAD TA3-24409 (IAD).
Amusquivar v. M.C.I, [2010] I.A.D.D. No. 1637,
See also: Khera v. M.C.I., 2007 FC 632 (FC)
The Board’s own legal services list the factors, as follows;
A) Inconsistent or contradictory statements
B) Previous attempts by applicant to gain admission to Canada
C) Previous marriages
D) Arranged marriages
E) Cultural Context
F) Mutual Interest
i) Knowledge about the other
ii) Contact between the couple
iii) Family ties
iv) Financial support and exchange of gifts
v) Delay in submission of sponsorship application
vi) Persistence in pursuing appeal
v) Birth of a child
G) “Compatibility”
Sponsorship Appeals- Bad Faith Family Relationships – Ch. 6
Immigration Appeal Division, Immigration and Refugee Board
Legal Services January 1, 2008
However, it should be considered that in assessing the different factors, the Federal Court writes:
24 The jurisprudence confirms that there is no specific test or set of tests established for determining whether a marriage or relationship is genuine and that the relative weight to be given to each is exclusively up to the officer or panel (Ouk v Canada (Minister of Citizenship and Immigration), 2007 FC 891 at paragraph 13; Zheng, above, at paragraph 23; Khan, above, at paragraph 20).
Keo v.MCI, [2011] F.C.J. No. 175
Therefore, in each case, different factors may be important, or any of the listed factors may be of greater importance than another. It should be considered that the Federal Court has also found the birth of the child does not automatically result in a spousal relationship being found genuine.