One of the most common visa applications Canadian immigration officials in embassies and consulates abroad face is on behalf of foreign spouses seeking Permanent Residency status within the family class category. Canadian citizens and residents holding Permanent Resident status are eligible to sponsor a foreign spouse. However, the application cannot be primarily for the purpose of getting entry into the country; that is to say, a marriage of convenience. Although nothing is specified in the relevant legislation as to what the valid criteria are for a successful spousal sponsorship, several decisions of Canada’s Immigration Appeal Division (IAD) tribunal provide useful guidance. I have selected three for discussion.

Côté v Canada (Citizenship and Immigration), 2021 CanLII 134292 (CA IRB), <https://canlii.ca/t/jlhv5
The first case involves Manon Cote, a woman of Christian heritage who was born in Canada and is 56 years old. She had been involved in a common law relationship which ended in 2012. She has no children. Back in 2017, she met a Moroccan man named Loutfih Rabih, a Muslim who she had met online through a social media site. After chatting over the course of the next several months, they agreed to meet in person for the first time in Morocco a year later in September 2018 and got married the next month. Ms. Cote subsequently visited Morocco four times since to see her husband, staying there for about three weeks each time. In total, the couple had been together for four years when Ms. Cote applied for a visa to bring Mr. Rabih to Canada as her spouse. However, the application was denied, so Ms. Cote appealed.

The IAD tribunal member looked at the same factors as the initial immigration officer and decided that the parties had established on a balance of probabilities a marriage for the purpose of bringing Mr. Rabih to Canada in the family class category. The fact that Mr. Rabih was 23 years younger than Ms. Cote was not relevant in light of a number of other indicia that pointed to a valid relationship between the parties. Among others, the couple had met online several times for a year prior to meeting in person and marrying shortly after. Ms. Cote’s regular and lengthy visits to Morocco was another. Each was able to provide detailed information about the personal histories of the other. Finally, the couple had indicated that in the event of their appeal to the IAD being unsuccessful, they would be willing to live as a couple in Morocco.

Law v Canada (Citizenship and Immigration), 2021 CanLII 134169 (CA IRB), <https://canlii.ca/t/jlj4t
In our next case, an even greater age difference and a much quicker courtship raised “red flags” for a Canadian visa officer but did not prevent an IAD tribunal member from overturning the decision to deny Permanent Residency. Norman Law and Akram Akbari are two unique individuals. Mr. Law is a widowed,75-year-old Canadian citizen who emigrated decades ago to Canada from Malaysia. He has been spending his retirement years researching and writing books about comparative religion. Ms. Akbari is a 42-year-old PhD student from Iran who had spent seven years in Malaysia studying the environmental impact of dam projects on the Indigenous peoples of Sarawak. They met, felt a kinship, met regularly over coffee at their favourite coffee shop for the next three weeks discussing their respective projects, and then Mr. Law proposed. Five months later, they married in front of friends and relatives in Australia.

By the time the appeal was before an IAD tribunal member, there was evidence of considerable, regular contact between the two parties. Mr. Law had spent half his time with Ms. Akbari since first meeting her both in Malaysia and elsewhere. The couple were in regular and intimate communication. Ms. Akbari had shown great care and attended Mr. Law’s bedside regularly while he was in a hospital intensive care unit because of kidney failure. Moreover, notwithstanding the significant difference in ages, the marriage was heartily supported by Mr. Law’s family members, especially his two adult children who were in their mid-thirties.

In arriving at his decision to overturn the visa officer’s decision to deny Permanent Residency to Ms. Akbari, the IAD tribunal member noted that he was not bound to pay any attention to the reasons of the visa officer but could decide matters based on the evidence before him as if he were hearing things for the first time. Of particular importance to the IAD member was Ms. Akbari’s heartfelt expression of her love for Mr. Law and her extensive knowledge of his personal history. In his reasoning, the IAD member drew attention to what he saw as the visa officer’s fixation on the 33-year age difference between the parties.

Yohannes v Canada (Citizenship and Immigration), 2021 CanLII 134424 (CA IRB), <https://canlii.ca/t/jlhvx
Finally, we have our last case to contrast with two instances where there were considerable markers that pointed to genuine marriages for immigration purposes. Amanda Yohannes is a 26-year-old Canadian citizen originally from Ethiopia. She has never married and has no children. Mehbratu Byarglgn is a 35-year-old Ethiopian citizen who is the father of a child born in 2017 to a woman with whom he had a relationship. He had met Ms. Yohannes in 2012 when she had visited the Ethiopian village family home after being introduced by family members. The couple married five years later in June 2017 in an arranged marriage.

The IAD tribunal member upheld the visa officer’s decision to reject Mr. Byarglgn’s application for admission to Canada as a member of the family class category. It was not hard to see why. Unlike in the two other appeals where there was extensive evidence of close connections between the parties and intimate knowledge of their respective lives, there was no connection between the parties since their June 2017 marriage in Ethiopia. When asked by the visa officer as to her knowledge of Mr. Byarglgn, Ms. Yohannes gave scant responses that were lacking in detail, to say the least. She thought he drove a taxi for a living. She was even vague about knowledge regarding her own family back in Ethiopia. Furthermore, aside from infrequent chats on WhatsApp, there was no connection between the couple from their first meeting in 2012 until their marriage in Ethiopia five years later in 2017. She could not even provide details about the wedding itself, unable to recall the location of the celebration, who had prepared the food or even who was at the wedding other than her mother and Mr. Byarglgn’s brother and a friend of hers. In conclusion, the IAD tribunal member found that Ms. Yohannes had failed to show that she had the in-depth, detailed knowledge that one might otherwise expect from a 10-year relationship that included four years of marriage. The tribunal member found the marriage to be one of convenience and rejected the appeal.

Conclusion: Based on decisions of the IAD Tribunals, the presence of the following criteria can indicate that a marriage with a foreign national is genuine for spousal sponsorship:

· Length of relationship and amount of time spent together· Spouses’ knowledge of each other· Parties’ behaviour and compatibility· Level of continuing contact and communication· Provision of financial support· Sharing of responsibility for the care of any children brought into the marriage· Intent of the parties to the marriage