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International Law

: Canadian Immigration Blawg

Appeal from Spousal Sponsorship Refusal

By immlawyer

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Had an appeal against the refusal of a spousal sponsorship. The hearing was held today via videoconference with the Board Member. In reviewing case law the night before, the following seemed to be helpful:

As in all other cases of this nature before the Division to date, the two prongs of the "bad faith" test articulated in Regulation 4 are to be read conjunctively, as per the French version of the Regulations. In order for a foreign national to be caught by section 4 of the Regulations, the preponderance of reliable evidence must demonstrate that the marriage is not genuine and was entered into primarily for the purpose of acquiring a status or privilege under the Act. This approach, of the two available, is most favorable to the appellant. In order to succeed on appeal, the appellant need only establish one of the prongs of the test has not been met. The onus is on an appellant to demonstrate that the principal applicant is not caught by the excluding section of the Regulations.

In today's case, an argument could be made that the marriage was entered into by the overseas spouse for the purpose of acquiring a status or privilege under the Act (immigrating to Canada to rejoin his family members here). Nevertheless, the evidence as to the genuineness of the marriage was clear ... and arguably, while it was a 'bonus' for the overseas spouse to rejoin his other family in Canada, the preponderence of evidence did not indicate that this was the 'primary' purpose.

I also came across the following:

Although it is the applicant's intentions that are also of pivotal importance, the intentions of the appellant are very relevant in considering the genuineness of the marriage.

My common practice is to call both the appellant and the applicant to testify as to the intentions of both parties as to the genuiness of the marriage.

Exactitude in the testimonies of the witnesses is not required, in my assessment, in order for an appellant to establish that the applicant does not fall within the rubric of the Bad Faith regulation. Discrepancies in testimony can be rooted in a myriad of factors, including cultural unfamiliarity, language difficulties, and the passage of time, amongst other legitimate reasons. This type of inconsistency, in my view, is outweighed by the detailed consistencies in other important areas, such as their recollections of more recent activities together. ...

It's impossible (in my experience) to have completely matching viva voce evidence. Exactitude is not required ... and some inconsistences can be explained. The evidence should match on "important areas".

Full post as published by Canadian Immigration Blawg on August 12, 2009 (boomark / email).