Tabesh v. Canada (Citizenship and Immigration), 2004 CanLII 76104 (CA IRB) : An Invalid Marriage Does Not End the Family-Class Inquiry: Conjugal and Common-Law Alternatives Must Also Be Considered

In Tabesh v. Canada (Citizenship and Immigration), 2004 CanLII 76104 (CA IRB), the Immigration Appeal Division (IAD) considered whether a foreign national whose purported marriage was not legally recognized could nevertheless qualify for the family class as a common-law partner or conjugal partner. The appeal arose after the sponsorship was refused because the marriage was found invalid under British Columbia law.

The IAD held that the three categories in paragraph 117(1)(a)—spouse, common-law partner and conjugal partner—are alternative means of establishing membership in the family class. Where a marriage is found formally invalid, the immigration decision-maker should also consider whether the relationship satisfies the requirements of either of the other categories.

Key Principle

Where an application is made on the basis of marriage but the marriage fails to meet the formal requirements for legal recognition, the visa officer should consider whether the applicant may nevertheless qualify as a common-law or conjugal partner under s. 117(1)(a). The IAD may also consider all three categories on appeal, including on its own initiative.

However, the applicant must provide sufficient evidence establishing the relevant relationship. A purported marriage, by itself, does not establish a conjugal relationship. Evidence may include intimacy, emotional ties, exclusivity, interdependence, joint decision-making, communications, financial support and other evidence demonstrating the nature of the relationship.

Background

Rita Tabesh sought to sponsor Kourosh Nasr Esfahani as her spouse. The couple participated in a marriage ceremony in North Vancouver on February 10, 2001. The purported marriage was conducted by an individual who was described as an Iranian marriage official, while the foreign applicant participated through a power of attorney.

The IAD found that there was no evidence that the person who solemnized the marriage was registered under the British Columbia Marriage Act, and there was also no evidence that a power of attorney could satisfy the statutory requirement that both parties be physically present at the marriage ceremony. The marriage was therefore not legally recognized in British Columbia.

The visa officer had considered only whether the applicant qualified as a spouse. The IAD therefore raised the issue of whether the applicant could alternatively qualify as a common-law or conjugal partner under s. 117(1)(a).

Court Findings

• An Invalid Marriage Does Not Preclude Alternative Family-Class Categories

The IAD rejected the Minister’s argument that it could only consider whether the applicant was a spouse. It held that the wording of the legislation permits consideration of the overall refusal of the visa application, including whether the applicant qualifies under another category within the same family-class provision.

• Conjugal and Common-Law Status Must Be Considered Where Marriage Fails

The IAD held that where the formal requirements of a legally recognized marriage are not met, the relationship evidence available to the officer may also be relevant to determining whether the parties qualify as common-law or conjugal partners. This avoids repeated applications and appeals concerning essentially the same relationship.

• The Applicant Must Establish the Conjugal Relationship With Evidence

Although the IAD considered the alternative categories, the evidence did not establish either one. There was no cohabitation, eliminating common-law status, and the evidence was also insufficient to establish a conjugal relationship of at least one year. The record primarily consisted of evidence intended to establish a legal marriage rather than evidence of intimacy, emotional ties, exclusivity, interdependence or joint decision-making.

• The Evidence Was Insufficient to Establish Membership in the Family Class

The IAD concluded that the evidence did not establish that the applicant was a spouse, common-law partner or conjugal partner. Consequently, he was not a member of the family class and humanitarian and compassionate considerations were unavailable under s. 65 of the IRPA.

Outcome

The IAD dismissed the appeal. Although it recognized that an applicant whose marriage is invalid may potentially qualify as a common-law or conjugal partner, the evidence in this case did not establish either relationship. Tabesh is therefore significant for establishing the principle that the family-class inquiry under s. 117(1)(a) should not necessarily end with a finding that a purported marriage is invalid; the alternative partner categories may also require consideration.

Case Citation:

Tabesh v Canada (Citizenship and Immigration), 2004 CanLII 76104 (CA IRB)