Mai v. Canada (Citizenship and Immigration), 2018 FC 304 : Court Finds Spousal Sponsorship Refusal Reasonable Where Earlier Divorce Was Primarily for Immigration Status

The Federal Court reviewed the refusal of Yucong Mai’s inland spousal PR application. Mr. Mai had divorced his first wife, Qiao Xian Li, who later married a Canadian citizen and obtained status through that marriage. After Ms. Li divorced her Canadian sponsor, she resumed her relationship with Mr. Mai and remarried him. The officer found that section 4.1 of the IRPR excluded Mr. Mai from the definition of spouse because the earlier relationship had been dissolved primarily to acquire immigration status. The Court upheld the decision.

Key Principle

Section 4.1 of the IRPR excludes a foreign national from being considered a spouse where a new conjugal relationship with the same person begins after their previous relationship was dissolved primarily so that the foreign national, sponsor, or another foreign national could obtain immigration status. Officers may examine the full history of the relationships, including divorces, remarriages, cohabitation, inconsistent testimony, and surrounding circumstances.

Background

Mr. Mai and Ms. Li first married in China in 1999 and divorced in 2004. Ms. Li then married Canadian resident Chi Hin Michael Tsang in 2005. Mr. Tsang sponsored her, and she became a Canadian permanent resident in 2006. They separated in 2007 and divorced in 2008.

Ms. Li subsequently resumed her relationship with Mr. Mai and gave birth to their second child in 2010. Mr. Mai entered Canada illegally from the United States in 2012, moved in with Ms. Li, and remarried her in 2013. She then sponsored him under the Spouse in Canada Class.

The officer questioned whether the first marriage had been dissolved primarily to facilitate immigration status. After interviewing the couple separately, the officer identified conflicting answers and concerns surrounding Ms. Li’s intervening marriage to Mr. Tsang and refused the application under section 4.1.

Court Findings

• No Procedural Fairness Breach

The Court rejected Mr. Mai’s argument that the interview letter failed to provide adequate notice. The concerns arose directly from section 4.1, and the interview request required documents concerning the marriages and divorces. The couple should have understood that their relationship history was at issue. They could also respond to concerns arising during the interview.

• No Right to Refresh or Coordinate Memories

The Court rejected the argument that the spouses should have been warned beforehand so they could refresh their memories about their divorce and remarriage. Separate interviews and comparisons of answers are legitimate tools for assessing the relationships. Basic matters concerning why spouses divorced and later remarried did not require additional preparation.

• Credibility and Relationship Findings Were Reasonable

The officer reasonably considered the circumstances of Ms. Li’s marriage to Mr. Tsang, including limited cohabitation evidence, the quick breakdown of the marriage, and limited evidence of a shared life or interdependence. The analysis was not improperly microscopic. Inconsistencies about basic aspects of the couple’s history were relevant to the bona fides of the relationships.

Outcome

The Federal Court dismissed judicial review, finding the officer’s section 4.1 determination reasonable and the process procedurally fair. No question was certified.

Case Citation:

Mai v. Canada (Citizenship and Immigration), 2018 FC 304 (CanLII)