The nature, degree of intimacy, and characteristics of couples’ relationships come under scrutiny in hearings before Canada’s Immigration Tribunals and Federal Courts in spousal sponsorship and Permanent Residency applications. And well they should. What can be at stake are matters like whether a spouse can be deported pursuant to a Departure Order or whether a spouse can be admitted into Canada. Two decisions in early January 2022 from Canada’s Federal Court show the extent of such scrutiny. The decisions are Mohammed v. Canada (Citizenship and Immigration), 2022 FC 1) CanLII, https://canlii.ca/t/jlk62 and Clarke v. Canada (Citizenship and Immigration), 2022 FC 12 CanLII, https://canlii.ca/t/jlmg5.

The Mohammed case involved a Fijian health care worker who faced being deported to Fiji for failure to meet the minimal requirements for obtaining a Permanent Residency (PR) status. Bhaona Mohammed had arrived in Canada in 2007 as an international student. She completed a health care aide program in May of 2008, then obtained a post-graduate work permit (PGWP) and found a job as a nursing assistant. She returned to Fiji before her PGWP expired in June 2009. She met the minimum required presence in Canada of 730 days over five years and in  March of 2014, she received PR status in Canada. In June of 2016, Bhaona made plans to visit her boyfriend who was living in the United States. However, when her boyfriend’s family learned the couple was co-habiting without being married, they pressured them to marry. They did so in a religious ceremony in July of 2016 in the U.S.

Bhaona’s husband had Permanent Residency status in the U.S. So, he applied to U.S. immigration authorities to sponsor her, but the application was denied. In the early days of that process, Bhaona had sought the advice of a U.S. immigration lawyer who had advised her to remain in the U.S. and not return to Canada. In October of 2020, Bhaona returned to Canada, but a Canada Border Services Agency officer refused entry deeming that she was in breach of her minimum residency obligation. So, on October 26, 2020, a Departure Order was issued. At an IAD hearing in March of 2021, Bhaona conceded she had not met the residency requirements for Permanent Residency but argued she had remained outside Canada pursuant to bad legal advice from her U.S. lawyer. She pleaded to be allowed to stay in Canada as a Permanent Resident on humanitarian and compassionate grounds. However, the IAD tribunal did not see it that way and issued a Departure Order.

Bhaona appealed to the Federal Court, which accepted her application for a judicial review of the Immigration tribunal’s decision. The two issues before the court were: 1) whether the IAD’s analysis of the evidence was reasonable; and 2) whether the IAD had breached procedural fairness. On the first ground of analysis, a court would typically be deferential to the Tribunal’s decision, refrain from reconsidering the evidence and not interfere with findings of fact except in the clearest, most exceptional of circumstances.

Setting aside a Departure Order based on humanitarian and compassionate grounds is an extraordinary remedy that allows a court to look beyond the legislative framework and to make an award based on equitable principles. There was no question that Bhaona had failed to meet the residency requirements during the five years prior to her second application for PR status. However, in over-ruling the IAD tribunal and granting PR status to Bhaona, the Federal Court highlighted the following pieces of evidence: 1) Bhaona had attained PR status on a previous occasion which indicates a sincere connection to Canada; 2) a grant of PR status to Bhaona would allow her to sponsor her husband to emigrate to Canada under the Family Class so they could reside together in Canada as opposed to the hardship they would suffer if she were living in Fiji while he was living and working in the U.S.; 3) all of Bhaona’s immediate family reside in Canada together; and 4) Bhaona had lived and worked as a health care worker in an Alberta long term care facility throughout the COVID crisis, a facility that had been especially hard hit by the Corona virus.

The Honourable Mr. Justice Ahmed of the Federal Court concluded his decision to grant PR status based on humanitarian and compassionate grounds by stressing that such considerations “…are meant to provide flexible relief in appropriate situations to mitigate the law’s rigidity.” Having decided that the IAD tribunal’s decision was unreasonable, Justice Ahmed deemed it unnecessary to address the second argument raised in this matter, that the IAD had breached procedural fairness.

The second case before the Federal Court concerned a denial of spousal sponsorship in the family class category. Basil Clarke is a Jamaican citizen who became a Permanent Resident of Canada in 2017. In an application to Federal Court for judicial review,  he argued, unsuccessfully as it would turn out, that he had a marriage that was not new but was in fact, if not formally, ongoing and uninterrupted since 1997 despite an intervening marriage to another woman.

The back story is a bit complicated. Basil met a woman in Jamaica who would later become his second wife (for clarity’s sake, I will refer to her as Mrs. Clarke). They began living together in 1998 and a year later, had a son together. Basil’s mother, who had been living in Canada since 1990, told him in 2005 that a woman in Canada was willing to enter a “marriage of convenience” with him and sponsor him to get him and his son into Canada. So, Basil married this woman and in 2007 he emigrated to Canada as a sponsored spouse under the family class category. Basil never lived with this woman, never had any children with her, but instead resided with his mother. In 2008, he divorced his wife and returned to Jamaica a few months later to marry Mrs. Clarke. In 2010, Basil’s application to sponsor Mrs. Clarke as a Permanent Resident triggered an investigation by Canadian immigration authorities into the circumstances of his first marriage. The authorities found misrepresentation, refused to grant Permanent Residency to Mrs. Clarke as a result, and stripped Basil of his PR status. After living in Canada without status for a few years, Basil made a PR application on humanitarian and compassionate grounds. The application was successful, and he regained PR status in 2017. However, a subsequent application to sponsor Mrs. Clarke as a spouse under the family class failed after a Canadian visa officer in Jamaica deemed the Clarkes’ marriage as not genuine. Basil appealed to the IAD.

Before the IAD tribunal, both Basil and Mrs. Clarke testified that their relationship began in 1997 and was ongoing in spite of Basil being unable to return to Jamaica for several years after losing PR status. Furthermore, Basil admitted that his first marriage was not genuine. The IAD tribunal looked to the definition of “common-law partner” in the Regulations to the Immigration and Refugee Protection Act (IRPA), which refers to a conjugal relationship between two people who have co-habited for at least one year. The tribunal also considered that Basil and Mrs. Clarke (they were not yet formally married) were regarded as a couple by their families, church, and wider community. Consequently, the tribunal found the relationship to be a common-law partnership throughout the years before Basil emigrated to Canada.in 2007.

However, in accordance with the rule as to what constitutes a new relationship as defined by the Regulations, this common-law partnership ended when Basil married a woman in Canada in 2007. In conclusion, the IAD tribunal agreed with the decision to decline Basil’s application to sponsor Mrs. Clarke as his spouse under the family class category. The tribunal ruled that a foreign national cannot “formally” dissolve a common-law partnership then “informally” maintain such a relationship while entering a “marriage of convenience” to attain PR status and then subsequently formalize an ongoing relationship as if it were a new relationship.

The Honourable Mr. Justice Favel of the Federal Court in reviewing the IAD decision found that it was “transparent, intelligible, and justified” and dismissed the application for judicial review. In the words of the Court, the rule regarding a new relationship “…is consistent with the objective of the IRPA, which is to protect the integrity of the immigration system.” At the end of the day, the message to be taken away by spousal sponsorship applicants is that attempts to circumvent the rules will not get you any further ahead. You may slough off a “marriage of convenience.” Canadian immigration authorities will not.