Spousal applications for permanent resident (PR) visas are common business in Canadian immigration circles. But what happens when one party to the marriage is absent from the wedding ceremony? Does that mean an application is dead in the water because an important formality for a valid marriage has not been complied with? A February 2022 decision of the Immigration and Refugee Board of Canada (Immigration Appeal Division) provides some guidance and hope.[1]

Tariq Abuelgasin (the Appellant) is a 39-year-old Canadian citizen. His wife Reem Mudather (the Applicant) is a 32-year-old citizen of Sudan. This was their first marriage. They had met online through Facebook in 2011, talked regularly over the next seven years, and then got married on December 12, 2018, at a ceremony in Sudan. However, Tariq was not physically at the ceremony; he was unable to leave Canada because of work obligations so he had arranged with an uncle to be at the wedding to speak for him.

However, there was a problem. According to section 117 (9) (c.1) of the Immigration and Refugee Protection Regulations, both spouses must actually attend a wedding ceremony, the exception being if the absentee spouse is a member of Canada’s miliary and had to be away because of a military obligation. Moreover, in accordance with section 65 of the Immigration and Refugee Protection Act, there is no exception on humanitarian and compassionate grounds unless the Applicant spouse is a member of the family class. However, in order to be a member of the family class, the PR Applicant must be a spouse of the sponsoring spouse. Therefore, a Canadian visa official rejected the application.

On appeal to the IAD, counsel for the Appellant argued that the relationship between the parties could be considered as a conjugal one, with some guidance provided by a 2004 decision of the IAD that had dealt with another situation where a couple had failed to meet the physical attendance requirement of a wedding ceremony.[2] In Tabesh v Canada, although the wedding at issue had taken place within Canada, the PR Applicant, an Iranian national, was outside of Canada at the time. Arrangements had been made to give power of attorney to an Iranian Immigration official who would both solemnize the marriage and sign the marriage certificate on behalf of the Applicant.

Although a Canadian Immigration officer refused to recognize the marriage because of non-compliance with Canadian laws, Tabesh nonetheless is relevant to the Abuelgasim matter and other similar cases where a putative spouse has been absent from a wedding. Canadian Immigration officials were willing to look to other evidence to determine whether the parties could be classified as “common law partners” or “conjugal partners” for the purpose of according them “family class” status so that an exception might be granted based on “humanitarian and compassionate grounds.” This analytical approach came to be known in Canadian immigration circles as a “Tabesh conversion.”

In its analysis in the Abuelgasim case,  the IAD pointed to the evidence of this being a first marriage for the parties, with no issues involving an illegal relationship from a criminal perspective in Canada, i.e., one involving bigamy, polygamy, a forced marriage, or an early marriage. Moreover, counsel for the Minister of Immigration, Refugees and Citizenship did not object to a Tabesh conversion in this case so the category of “conjugal partners” was on the table for consideration. The IAD looked to the mature ages of the parties (the Appellant being 36 and the Applicant being 28 at the time of their marriage); the lack of evidence that either party was forced into marrying; and that they had evidently freely and willingly consented to the union. Furthermore, the IAD considered the objectives of the Immigration and Refugee Protection Act, which includes family reunification and maintaining the integrity of the immigration system and determined that applying a Tabesh conversion in this case would not undermine those objectives.

So, irrespective of the lack of formal compliance with the wedding requirement, the IAD gave apparent considerable weight to the evidence that the parties have lived in an exclusive, monogamous relationship since the wedding of December 2018. They have been viewed as spouses by government border officials during their travels since then, as well as by hotel staff. Friends and family have also regarded them as a married couple since the putative wedding in late 2018. The couple has a child that was born in June of 2021, to whom the Appellant sends gifts and for whom he provides financial support. Whenever they are together, the couple lives as people in committed relationships do, sharing living space, meals, and socializing together. The IAD also found the parties to be straightforward, credible witnesses.

Finally, the IAD determined the evidence established the couple had been in a conjugal relationship from the minimum required year before the lock-in date of the sponsorship application of June 11, 2020. In conclusion, the IAD tribunal ruled that the Appellant had established on a balance of probabilities that he and the Applicant were conjugal partners within the meaning of the Immigration and Refugee Protection Regulations and thus the Applicant was a member of the family class.

[1] Abuelgasim v Canada (Citizenship and Immigration), 2022 CanLII 37631 (CA IRB), <https://canlii.ca/t/jp29n

[2] Tabesh v Canada (Citizenship and Immigration), 2004 CanLII 76104 (CA IRB), <https://canlii.ca/t/gjxng