Carriere v. Canada (Citizenship and Immigration), 2018 CanLII 139890 (CA IRB) : Conjugal Partner Sponsorship – No Legal Requirement to Prove an Impediment to Marriage or Cohabitation

This Immigration Appeal Division decision concerned the refusal of a permanent resident visa application where the applicant was sponsored as the appellant’s conjugal partner. The visa officer accepted that the relationship was genuine, committed, loving, and involved elements of dependency. However, the officer refused the application because the appellant had not demonstrated an impediment to marriage or cohabitation, treating such an impediment as necessary to qualify as a conjugal partner.

The IAD rejected that interpretation. It held that requiring an impediment to marriage or cohabitation was not legally valid, because no such requirement appears in the statutory or regulatory definition of “conjugal partner.”

Key Principle

A foreign national does not have to demonstrate an impediment to marriage or cohabitation to qualify as a conjugal partner under section 2 of the Immigration and Refugee Protection Regulations.

The IAD emphasized that although such a requirement appeared in immigration processing manuals, it was not found in the definition of “conjugal partner” in section 2 of the Regulations or elsewhere in the legislation. Administrative manuals could therefore not create an additional legal requirement for eligibility.

Background

The appellant, Lorrie Marie Carriere, sponsored Christopher Nigel Walker as her conjugal partner for permanent residence in Canada.

In August 2017, a visa officer refused the permanent resident visa application. Importantly, the officer accepted that the parties were in a genuine, committed and loving relationship with elements of dependency. The refusal was instead based on the officer’s conclusion that the appellant was required to establish an impediment preventing the parties from marrying or cohabiting.

At the IAD hearing, the appellant testified without counsel. Following her testimony, counsel for the Minister consented to the appeal being allowed.

Court Findings

• An Impediment to Marriage or Cohabitation Is Not Required

The IAD expressly rejected the visa officer’s requirement that the appellant demonstrate an impediment to marriage or cohabitation. The panel found that this requirement was not legally valid because it was not contained in the legislative definition of conjugal partner.

• Processing Manuals Cannot Add a Statutory Requirement

The IAD acknowledged that the impediment requirement appeared in immigration processing manuals. However, the existence of such guidance did not make the requirement legally binding. The panel found no corresponding requirement in section 2 of the Regulations or elsewhere in the legislation.

• The Relationship Was Conjugal

Having rejected the additional impediment requirement, the IAD found that the appellant and applicant were conjugal partners. The officer had already accepted that the relationship was genuine, committed, loving, and involved dependency.

Outcome

The appeal was allowed. The visa officer’s refusal was set aside, and the application was directed to continue processing in accordance with the IAD’s reasons.

Significance: Carriere is a useful IAD authority for the proposition that an impediment to marriage or cohabitation is not a prerequisite to establishing a conjugal relationship. It is particularly useful when challenging a refusal based solely on the absence of such an impediment.

Case Citation:
Carriere v Canada (Citizenship and Immigration), 2018 CanLII 139890 (CA IRB)