Spousal sponsorships make up a considerable number of applications that Immigration, Refugees and Citizenship Canada (IRCC) process in any given year. So, a recent announcement that the IRCC has returned to a 12-month processing standard for new applicants comes as welcome news. This service standard is to be the same whether the spouses are applying as inland applicants (within Canadian borders) or outland applicants (from another country).
As can be expected, regulations and policy guidelines underpin the decisions of IRCC visa officers. However, the officers also have discretion to approve visas that may not otherwise strictly conform with designated conditions, such as providing financial support to relatives or in-laws while they are living in Canada pending their application for Permanent Residency (PR). “Compassionate and humanitarian grounds” (C&H) is one discretionary exception that can be used if a sponsor has failed to meet a condition. Moreover, with large numbers of people dating online and even marrying online these days, visa officers are being called on to draw on their discretionary authority more than ever, especially as the world emerges from the social isolation that came with the restrictions of the COVID years.
Two late 2021 decisions of the Immigration Appeal Division (IAD) suggest that if anything, IRCC visa officers can be expected to continue facing situations where they will be called on to exercise their discretion in making decisions about granting visas. The cases are: Nadarajah v Canada (Citizenship and Immigration), 2021 CanLII 134418 (CA IRB), <https://canlii.ca/t/jlj30, where the “humanitarian and compassionate grounds” exception was in issue; and Alam v Canada (Citizenship and Immigration), 2021 CanLII 134237 (CA IRB), <https://canlii.ca/t/jlhv6, where an arranged marriage streamed in real time on Skype acquired a status that would prove to be more than symbolic.
In Nadarajah v Canada, the facts are fairly straightforward. Kandasamy Nadarajah has a long and substantial connection with Canada, having lived in Canada for 35 years and acquiring refugee status upon arrival from Sri Lanka. He married Jeyanthini Nadarajah (the Applicant) in June of 2018. One year later, he sponsored Jeyanthini’s application for PR status as well as that of her minor daughter. Unfortunately, a marriage from his past brought residual consequences for his current spousal sponsorship aspirations. He had sponsored his first wife to Canada back in 2005 and she subsequently had applied to sponsor her parents. Kandasamy had signed an undertaking to be financially responsible for his parental in-laws for a 10-year period. However, the marriage did not work out; Kandasamy and his ex-wife separated in 2009 and divorced nine years later. During these years of separation, Kandasamy’s in-laws received social assistance from the Government of Ontario.
The visa officer denied Kandasamy’s latest spousal sponsorship application, basing his decision on Kandasamy being in default of his undertaking to be financially responsible for his ex-wife’s parents. On appeal to the IAB, Kandasamy did not dispute the legal basis of the visa officer’s decision, but rather asked for a reconsideration based on “humanitarian and compassionate grounds” (H&C). The IAD tribunal looked at the evidence, determined there was sufficient evidence to justify an exception on the basis of H&C, reversed the visa officer’s decision, and sent the application back to be processed.
Kandasamy became aware of the social assistance payments – which amounted to over $99,000 in total – to his ex-wife’s parents after he had filed a sponsorship application for the Applicant. Immediately upon learning of the situation, Kandasamy had contacted Ontario Works and had agreed to a monthly payment of $315, which was all he could afford based on his income which was only around $3000 net. From this amount, Kandasamy was sending between $1800-$2000 each month to the Applicant who was living in Sri Lanka. In finding grounds for the H&C exception, the tribunal identified three factors: financial hardship, the emotional strain of physical separation, and the best interests of the child having contact with her father.
Whether a marrying couple had to be physically present in the same location for the marriage ceremony to be deemed valid for Canadian immigration purposes was an issue before an IAD tribunal in Alam v Canada. Tasnia Alam is a Canadian citizen, born and raised in Canada by parents who had emigrated from Bangladesh. She was not married prior to her marriage with Tarifu Islam (the Applicant), who is a 25-year-old citizen of Bangladesh where he resides. He was not married before marrying Tasnia; there are no children of the marriage.
On September 25, 2016, the couple went through a marriage ceremony by way of Skype; Tasnia was in Canada and Tarifu was in Bangladesh. On March 22., 2017, the couple had another wedding ceremony but this one was in Bangladesh and both parties were physically present. In December of 2016, Tasnia applied to sponsor her husband based on the marriage celebrated on Skype, but the application was subsequently denied in November 2017. The visa officer decided that the September 2016 marriage excluded Tarifu from the family class because one of the spouses (Tasnia) was not physically present at the time of the marriage ceremony. Also, he ruled the marriage was not genuine and was entered into primarily for immigration purposes. Tasnia then made a second sponsorship application on December 17, 2018, based on a marriage ceremony that took place on March 22, 20217 in Bangladesh. However, the officer again refused the application, ruling that Tarifu was inadmissible for misrepresentation.
However, upon weighing the evidence, the IAD tribunal ruled that Tarifu is not excluded from the family class of potential applicants, and he is not inadmissible for misrepresentation. There is a rebuttable presumption under international law that official documents issued by a foreign government are presumed to be valid and will serve as proof of their contents unless there is evidence to suggest they are not. This “presumption of validity” applied to the marriage certificate issued by the Muslim Marriage Registrar for Bangladesh, which affirmed that a second marriage ceremony occurred on March 22, 2017, in Bangladesh. This second marriage adhered to all the formalities of Bangladeshi law, not the least of which were the wedding couple was in attendance and in the presence of the same persons who had witnessed the first marriage ceremony which had occurred through Skype on September 25, 2016. Finally, this prior marital ceremony performed through Skype had also been conducted in accordance with Bangladeshi law.
Whether the couple had entered a lawful marriage or simply a “marriage of convenience” for Canadian immigration purposes was also for the IAD tribunal to consider. In its analysis, the tribunal had to assess the genuineness of the marriage and its primary purpose at the time it took place. The tribunal took note of the fact that the couple had met through mutually acquainted match-makers and that “arranged marriages” are a common feature of traditional Bangladeshi culture. Both Tasnia and Tarifu testified before the tribunal that upon the match-makers communicating each young person’s mutual interest in further meetings, they began communicating with each other in late 2015 using various social media applications such as Facebook messenger, WhatsApp, and Viber.
Over the course of several months, Tasnia and Tarifu spoke regularly through social media. Of even greater significance, Tasnia and her family traveled to Bangladesh in June of 2016 during which time she spent considerable time with Tarifu and in various relatives’ homes for dinners and other family celebrations and events. Furthermore, and in addition to visits connected to the wedding, Tasnia returned to Bangladesh for three weeks in March of 2017, one month in the spring of 2018, another month in the fall of 2019, and then spent several months from December of 2020 through May of 2021. In conclusion, the IAD tribunal found a preponderance of evidence to discharge the burden of proof and establish that, on a balance of probabilities, Tasnia’s marriage was genuine and not entered into primarily for immigration purposes.