Marriage appeal – Sponsorship Refusal – Appeals before the Immigration Appeal Division of the Immigration and Refugee Board

I’ll be attending at the Immigration Appeal Division of the Immigration Refugee Board on August 24, 2016 to handle an appeal against a refused spousal sponsorship application. In this case, my client is a Canadian citizen born in Punjab, India. He is a Sikh, and this is his third marriage. He had a short-lived first marriage while he was in a third country; he married again and on the basis of this second marriage was sponsored to Canada. Some months after he arrived, the marriage broke down with his sponsor and acrimonious divorce proceedings ensued. The breakdown of that relationship soon after his arrival to Canada raised the specter that he had committed marriage fraud to enter this country.

His ex-wife called the police the day she left the matrimonial home; after investigation no charges were laid against my client; she then made allegations that he committed marriage fraud to the immigration authorities of this country that resulted in delay in the finalization of his citizenship application. Despite the passage of many years since the breakdown of their relationship, she then wrote a poison pen letter to the overseas visa office with respect to his current relationship and sponsorship alleging that his current marriage was done for money, that is it was marriage fraud.

My client had traveled back to India to get married some years after his divorce from his second wife and met his present wife through what is best described as an arranged introduction. Adding to the messy immigration history and marital history, the Visa officer had before him or her the fact that my client and his wife agreed to marry each other the same day that they met for the first time (in fact discussions had occurred for months prior to his arrival in India).

There was an interview of my client’s wife, she did poorly, and the Visa was refused. My client appealed that refusal to the Immigration Appeal Division and that appeal was also refused. It looks like it was close, but the board member simply was not satisfied and noted that the cumulative deficiencies were enough to gainsay the genuine nature of this relationship.

My client then sought judicial review and luckily this matter was sent back for re-determination as the Federal Court found that some of the findings of the IAD were not sustainable in light of the evidence. Given that the IAD made its negative decision on “cumulative deficiencies” and that some of those deficiencies were not supported by the evidence, the Court could not say whether the decision would have been the same if those unreasonable findings had not been made. As a result, this matter was sent back to the IAD, a different board member for re-determination.

While it has been sent back for re-determination, the file will include the transcript from the first IAD hearing. I reviewed those transcripts with my client and my sense is that he was simply not well-prepared for the questions and his meandering answers did little to put his case in the best possible light.

Moreover, Minister’s counsel asked open-ended questions, not quite cross-examination type of questions which further encouraged these long-winded answers. I think my client was doing his best to showcase the obvious genuine relationship but flailed about to some extent. However, the IAD member then picked up on some of these long-winded meandering answers and asked quite a few questions. Perhaps, more questions than Minister’s counsel asked.

It became clear that the board member became somewhat fixated on this more seeming discrepancy between my client, the sponsor’s intention, with respect to the child born from his second marriage. It seems that my client’s ex-wife has poisoned the relationship between him and his son; there has been no access after unfounded allegations of abuse were made against him. While my client greatly desires to see his son, it is not something that he has thought deeply or taken any steps. My client’s present wife is and remains supportive of her husband’s desire to see the son, and she intimated at that first hearing that the couple would seek custody of that child. The fact of the matter is that my client’s wife is sitting all the way over in India and may not be aware of what that term of art means or what it entails. In any event, even the federal court agreed that much was made very little that the discrepancy between a desire to see his son and an intention to seek custody was a specious one.

The IAD was concerned that sufficient background checks were not done, and that background checks in this culture and with respect to arranged marriages are one of the hallmarks or arranged marriage. However, my reading of it is that the IAD was imposing its own views as to what constitutes sufficient background checks. In this case, there was no way to obtain independent, third party, corroborative information regarding what happened the day my client’s ex-wife left the matrimonial home. To some extent, background checks will always depend on self-reports and third parties that can vouch for the individual, but more likely the family. This displayed a misunderstanding or misapprehension of this cultural touchstone by the first IAD board member and perhaps something that my client’s previous counsel was not able to discern either.

In this case, the middle person was known to both families and the middle person had family in Calgary where the sponsor resides and was able to speak to certain aspects of his personal circumstances, including the fact that he and his family were well settled here, gainfully employed, continued to have a residence back in India, that the “boy” did not drink or smoke and – that he was the only son (another factor not explored by previous counsel or recognized by the first IAD member).

The Federal Court seemed to be okay with the IAD conclusion, finding that the checks by independent parties didn’t really occur, and at the end of the day, the sponsor’s account of his past was accepted at face value. Again, I think the board was imposing its own standard on the types, or the nature, or the quality of the background checks.

Justice Barnes has written a number of excellent decisions concerning the nature of such appeals. In Gill 2010 FC122, Justice Barnes writes

“the Board’s task is not an easy one, because the genuineness of personal relationships can be difficult to assess from the outside”, and cautions the IAD by saying that “… must proceed with great care, because the consequences of a mistake will be catastrophic for the family …”

The IAD itself is cognizant that it must view the genuineness of a relationship through the eyes of the parties themselves against the cultural background, or backdrop, in which they have lived {see Gill 2009 CanLII 82652 (CA IRB)}. This did not entire occur as the Board in this case did not fully understand that cultural background and imposed greater evidentiary requirements for the so-called background checks than what exists in reality or what was possible in these particular circumstances.

That same Gill IAD decision states at paragraph 40

“… Western Harlequin Romance ideals do not apply to everyone and they should not be determinative of a genuine relationship …”.

The IAD in my client’s first appeal made negative inferences based on its view or understanding of the relevant cultural backdrop. This too must be undertaken with caution. Justice de Montigny in Sandhu 2014 FC 1061 noted,

“… It is no doubt true that a background investigation and the compatibility of the parties are generally considered the hallmarks of an arranged marriage. Yet cultural practices are fluid and not fixed in time …”

Again, he ends with a caution to the IAD,

“Such a decision, however, must rest on a reasonable assessment of the evidence and cannot be the result of irrelevant factors, peripheral considerations, or, even worse, prejudice and insensitivity to cultural differences.”

I don’t see how the background checks or alleged deficiency in same could be so determinative or central to a marriage that is now entering its 5th year. Moreover, there was more than enough evidence before the board as to the compatibility of these individuals. The couple was well-matched in terms of age, caste, shared religious and cultural background, and significant similarities between their respective families. They showed significant knowledge of one another at the first hearing; they were castigated, oddly enough, in that decision both of knowing too much and then not knowing enough.

It may be that my client’s first lawyer was himself not alert or alive to other cultural, and perhaps implicit considerations. As I indicated above, my client happens to be the only son in his family, and this is a factor in determining suitability or desirability in terms of a proposed match and something the “girl’s” side would have considered.

Punjabis are still an agrarian culture and land is typically passed to and divided amongst male descendants and simply put marrying off a daughter to a family with many sons is not as preferable as marrying her off to a family with property and a single heir. As Justice de Montigny notes, cultural practices are fluid and not fixed in time and this attitude may change.

Further, the fact that my client did not have contact with his son could be oddly enough a positive factor. Again, marrying off a daughter to a household where she would take responsibility or provide care to children as a step-mother would be cause for concern for most Punjabi families.

The “girl’s side” were presented with a proposal of a well-established, hard working, non-drinking, non-smoking man, just a few years older than their daughter with a family with a very similar background. He had been divorced, years had passed since that divorce was finalized and while there was a son, there was no contact. The “boy” and his family were presented with an educated woman, working in a professional capacity, with a remarkably similar family background as their own. There was nothing to object to and the couple and their respective families were able to agree on the same day that the couple met.

I think it’s very important to keep first principles in mind. The Board will assess the genuineness of a marriage or common-law on a number of factors. These factors can include the intent of the parties to the marriage, the length of the relationship, the amount of time spent together and ongoing contact and communication, conduct of the parties at the time of meeting, marriage, and behavior subsequent to the marriage; {most importantly in my view} knowledge of each other’s relationship histories, knowledge of children brought into the relationship, and knowledge of extended family and contact with same, and knowledge of each other’s daily lives.

Other factors that the board considers includes persistence in pursuing an appeal after refusal, compatibility, gifts or financial support, and no previous attempts by the applicant to enter prior to the marriage.

This has been said before and will be said here. Preparation is key. Lack of preparation leads to anxiety and nervous witnesses do not provide good testimony. A nervous or anxious witness, or the faulty testimony from an anxious witness can be confounded with indicia of a non-genuine relationship. A lot is riding on this appeal and I know how stressed my client is. It is imperative that a counsel is experienced, aware of the cultural background and backdrop and assiduously prepares both the sponsor and the applicant overseas.

A good resource continues to be the IAD legal services publication on sponsorship appeals; particularly chapter 6, which deals with “Bad Faith Family Relationships”. The publication is a little dated and still talks about section four of the Regulations being read conjunctively to preclude the sponsorship. As of today, section 4 of the Regulations applies to preclude a sponsorship if either of the two prongs of the bad faith test apply in the relationship. Accordingly, to succeed in an appeal, an appellant needs to show that neither of the two prongs applies on a balance of probabilities (the relationship is genuine and was not entered into for the primary purpose of securing status in this country).

Some counsel inexplicably takes their clients through canned questions and responses. I think that this is of very little assistance and frankly a complete waste of time. For example, I have actually seen counsel who have done many hearings, but apparently do them all the same way. They inevitably ask the sponsor in Canada what the applicant’s favorite color is and what their own favorite color is, and then when the applicant gets on the telephone to pose to exact same question in reverse. It’s some wedding game, but the member obviously will not assign any weigh to any type of canned question, or canned response, or a set piece such as this.

A well-prepared client will give testimony that is spontaneous, detailed and cogent. This means the ability to discuss what was done on the sponsor’s last visit, or how they traveled to a particular overnight outing, or details about close family members that a husband/spouse/partner should know. This goes much farther in establishing their case than their husband, or wife, or partner’s favorite color, or favorite meal.

Cross-examination is only to be feared if your client is unprepared. The purpose of a cross-examination is to undermine the factors set out above or impugn credibility. The purpose of cross-examination from the minister’s point of view is also to show that the intent of the parties, or the intent of, at least, the applicant, is to enter Canada and not be with their sponsor permanently.

Minister’s counsel will undoubtedly explore the levels of ongoing contact and communication, any discrepancies between, or on issues that a genuine couple should know about, conduct that maybe implausible or not in accordance with how we expect newly married or married couples to behave at the time of the meeting or subsequently.

The majority of cross-examination will explore knowledge, knowledge of each other’s daily lives, knowledge of in contact with family members, and knowledge of prior marriages or relationships. Perhaps, even immigration history or employment history.

This October will be this couple’s fifth wedding anniversary. It has been close to that period of time, half a decade of them attempting to navigate the immigration system. That meant failing to address the concerns of the Visa officer overseas. That meant being unable to establish that the relationship was genuine before the Immigration Appeal Division – unfortunately, an appeal to the IAD can take as long as two years to be heard in the western region. It’s even longer out east.

After the IAD refusal, my clients were stressed and the strain of being apart is hard on any relationship. Nonetheless, they persevered and were able to secure a positive decision at the Federal Court which has set the stage for today’s hearing.

I expect that the hearing today will go smoothly and my clients will be able to explain very clearly their intent at the time of the marriage, their compatibility, what they considered and relied upon in agreeing to this marriage, their contact, communication, and their detailed knowledge of each other’s lives and past.

It has been a long and arduous odyssey for them, and I hope this marks the end of their separation.