The Federal Court reviewed an
Immigration Appeal Division decision dismissing a spousal
sponsorship appeal under
subsection 4(1) of the IRPR. The Court found that the IAD reasonably concluded
that the applicant’s wife had entered the marriage primarily to obtain
immigration status, although the IAD’s separate finding that the marriage was
not genuine was unreasonable. Because the Regulations are disjunctive, the
finding
on primary purpose was sufficient
to uphold the refusal.
Key Principle
Under the current wording of
subsection 4(1) of the IRPR, the genuineness and primary-
purpose requirements are separate
and disjunctive. The relevant time for assessing:
• Primary purpose: the parties’
intention at the time the marriage was entered into.
• Genuineness: whether the
marriage is genuine at the time of the assessment.
A marriage can therefore be
genuine at the time of the hearing while still being excluded if it was entered
into primarily for the purpose of acquiring immigration status.
The IAD must assess the two
requirements separately and cannot weigh genuineness against primary purpose as
though one factor could overcome the other.
Background
The applicant was a Canadian
citizen originally from Guyana. His cousin introduced him to his wife, who was
also from Guyana and had a son. The couple began speaking by telephone in June
2008, met in person for the first time on July 30, 2008, and married in Guyana
seven days later. The applicant submitted a sponsorship application in January
2010. The visa officer refused the application, finding that the applicant’s
wife had entered the marriage primarily to obtain status in Canada and that the
marriage was not genuine.
The IAD dismissed the appeal. The
IAD relied on factors including the short period between the couple’s first
meeting and
marriage, the wife’s limited
reservations about the proposed marriage, the applicant’s Canadian status and
the wife’s desire to provide her son with a better future.
Court Findings
The Federal Court found that the
IAD’s finding concerning primary purpose was reasonable.
The evidence showed that the
couple agreed to marry very quickly, after only a short telephone conversation
and one in-person meeting. The applicant was the only marriage candidate presented
to his wife, and the IAD reasonably found that his Canadian status played a
role in her decision. The Court therefore found that the IAD was entitled to
conclude, on a balance of probabilities, that the wife entered the marriage
primarily for the purpose of immigrating to Canada with her son. The Court
nevertheless found that the IAD’s separate finding that the marriage was not
genuine was unreasonable.
Most of the factors relied upon
by the IAD actually supported or were neutral regarding
genuineness. The applicant
provided financial support, maintained regular communication with his wife and
made repeated visits to Guyana. The IAD’s concern about the applicant’s
relationship with his stepson was based largely on a minor issue involving a
nickname. The Court found that it was unreasonable to conclude that the marriage
was not genuine based on such a limited concern. More importantly, the IAD
improperly asked whether evidence of the subsequent development of the
relationship was sufficient to “outweigh” the original primary purpose of the
marriage. That was legally incorrect.
The two tests operate
independently. Evidence that a marriage is genuine cannot simply be weighed
against a finding that it was originally entered into primarily for immigration
purposes.
Outcome
The Federal Court dismissed the
application for judicial review because the reasonable finding on primary
purpose was sufficient to uphold the refusal. The Court also certified a
question concerning whether the disjunctive wording of subsection 4(1) of the
IRPR was ultra vires the IRPA’s family reunification objective in paragraph
3(1)(d).
Case
Citation:
Singh v. Canada (Citizenship and Immigration), 2014 FC 1077 CanLII
Written by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst





