ykcor said:
HI Everyone.
When i look at the CIC documents for the guidelines for recognizing a fraudulent marriage, the the information has been removed.
"2. Procedure:
Identifying a relationship of convenience
This information is no longer available"
Does anyone have it saved from before it was removed?
Thanks
There is detail information
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
1
Chapter Six
Bad Faith Family Relationships
THE LEGISLATIVE FRAMEWORK
Introduction
A Canadian citizen or permanent resident may sponsor an application for permanent
residence made by a member of the family class. Section 117(1) of the Immigration and Refugee
Protection Regulations (the “IRP Regulations”) includes “the sponsor’s spouse, common-law
partner or conjugal partner” as a member of the family class.
The IRP Regulations have combined in one provision – “bad faith” – a test of relationship
for a number of family relationships. Section 4 of the IRP Regulations provides a two-pronged
test of relationship for marriage, common-law partnership, conjugal partnership and adoption.
Section 4 relates to all applications not just family class applications. If both prongs of the test
set out in section 4 of the IRP Regullations are met, the foreign national shall not be considered
as within the particular family relationship. For family class sponsorships, if the foreign national
is not within the specified family relationship, that person will not be a member of the family
class in relation to their sponsor nor will that person be considered as within the specified family
relationship to the person being sponsored. In this chapter, the scope of section 4 as well as other
related provisions is reviewed. How these provisions are applied to a particular family
relationship will be covered in chapter 5 of this paper (Spouses, Common-Law Partners and
Conjugal Partners).
Statutory Provisions
Section 4 of the IRP Regulations1 reads as follows:
For the purposes of these Regulations, a foreign national shall not be
considered a spouse, a common-law partner, a conjugal partner or an
adopted child of a person if the marriage, common-law partnership,
conjugal partnership or adoption is not genuine and was entered into
primarily for the purpose of acquiring any status or privilege under the
Act.
1 This section was amended in 2004 to clarify the wording of the section. Prior to amendment it read as follows:
“For the purposes of these Regulations, no foreign national shall be considered a spouse, a common-law
partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal
partnership or adoption is not genuine or was entered into primarily for the purpose of acquiring any status or
privilege under the Act.”
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
2
In 20042 a new provision, Section 4.1, was added to the IRP Regulations to cover the
situation of a new relationship where a prior relationship was dissolved primarily for immigration
purposes. Section 4.1 reads as follows:
For the purposes of these Regulations, a foreign national shall not be
considered a spouse, a common-law partner or a conjugal partner of a
person if the foreign national has begun a new conjugal relationship with
that person after a previous marriage, common-law partnership or
conjugal partnership with that person was dissolved primarily so that the
foreign national, another foreign national or the sponsor could acquire
any status or privilege under the Act.
There are other IRP Regulations that deal with the bone fides of family relationships3 in
considering whether a person is a member of the family class as follows:
• Section 117(1)(g)(i) that deals with persons under 18 whom a sponsor intends to adopt in
Canada requires that “the adoption is not primarily for the purpose if acquiring any privilege
or status under the Act”.4
• Section 117(4)(c) that deals with an adopted child who was adopted when the child was over
age 18 requires that “the adoption is not primarily for the purpose if acquiring any privilege
or status under the Act”.
Section 63(1) of IRPA provides for the right of appeal against a decision not to issue a
permanent resident visa to a member of the family class and reads as follows:
A person who has filed in the prescribed manner an application to
sponsor a foreign national as a member of the family class may appeal to
the Immigration Appeal Division against a decision not to issue the
foreign national a permanent resident visa.
Pursuant to section 65 of the Immigration and Refugee Protection Act (“IRPA”), the
Immigration Appeal Division may not consider humanitarian and compassionate considerations
unless the applicant is a member of the family class and their sponsor is a sponsor within the
meaning of the IRP Regulations as:
2 SOR/2004-167, s. 3(E).
3 A provision dealing with guardianship was never enacted.
4 In addition, section 117(2) provides that where the child was adopted under the age of 18 years the adoption
must be in the child’s best interests within the meaning of the Hague Convention on Adoption otherwise the
adopted child shall not be considered a member of the family class. Under section 117(3), one of the
requirements to determine whether the adoption is in the child’s best interests is that the adoption created a
genuine parent-child relationship. For a discussion of this issue see the chapter in this paper on adoptions.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
3
In an appeal under 63(1) or (2) respecting an application based on
membership in the family class, the Immigration Appeal Division may
not consider humanitarian and compassionate considerations unless it has
decided that the foreign national is a member of the family class and their
sponsor is a sponsor within the meaning of the regulations.
In order to interpret section 4 and the related provisions in the IRP Regulations, it is
helpful to consider the wording of similar provisions in the Immigration Regulations, 1978 (the
“former Regulations”), as there is considerable case law in relation to those provisions.
Section 4(3) of the former Regulations that dealt with marriages read as follows:
The family class does not include a spouse who enters into the marriage
primarily for the purpose of gaining admission to Canada as a member of
the family class and not with the intention of residing permanently with
the other spouse.
Section 6(1)(d)(i) of the former Regulations that dealt with the sponsorship of fiancées5
read in part as follows:
…where a member of the family class makes an application for an
immigrant visa, a visa officer may issue an immigrant visa to the
member, and the member’s accompanying dependants if … (d) in the
case of a fiancée, … (i) the sponsor and the fiancée intend to reside
together permanently after being married and have not become engaged
primarily for the purpose of the fiancée gaining admission to Canada as a
member of the family class…
Sections 2(1) and 6(1)(e) of the former Regulations that dealt with adoptions read in part
as follows:
2(1) – “adopted” means a person who is adopted … but does not include
a person who is adopted for the purpose of gaining admission to Canada
or gaining the admission to Canada of any of the person’s relatives.
6(1)(e) - …where a member of the family class makes an application for
an immigrant visa, a visa officer may issue an immigrant visa to the
member, and the member’s accompanying dependants if … (e) in the
case of a person described in paragraph (b) of the definition of “member
of the family class” in subsection 2(1), or a dependant of a member of the
family class, who has been adopted, the person or dependant was
5 It must be noted that fiancées are not members of the family class under IRPA or IRP Regulations. Section 356
of the IRP Regulations provides that where a fiancée application for a permanent resident visa was made before
June 28, 2002, the application is governed by the former Act. See also the section in this chapter on the
Transitional Provisions.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
4
adopted before having attained 19 years of age and was not adopted for
the purpose of gaining admission to Canada of the person or dependant,
or gaining the admission to Canada of any of the person’s or dependant’s
relatives.
Type of Refusal: jurisdictional or non-jurisdictional
Under the former Regulations, the onus was on the appellant to establish that the
sponsored spouse was not excluded from membership in the family class by reason of the
application of section 4(3)6 or that an adopted child was not excluded from the definition of
“adopted”. In either case, if membership in the family class was not established, the appeal
would be dismissed for lack of jurisdiction. Under the former Regulations, the Immigration
Appeal Division had no jurisdiction to hear an appeal with respect to a sponsorship where the
applicant was not a member of the family class in relation to the sponsor.
Under IRPA, the same issue arises. If a foreign national is not considered a spouse, a
common-law partner, a conjugal partner or an adopted child of the sponsor due to the application
of section 4 of the IRP Regulations, then the foreign national is not a member of the family class
with respect to his or her sponsor.
Section 63(1) of IRPA provides that a person who has filed in prescribed manner an
application to sponsor a foreign national as a member of family class may appeal to the
Immigration Appeal Division against a decision not to issue the foreign national a permanent
resident visa. Section 10(6) of the IRP Regulations provides that a sponsorship application not
made in accordance with section 10(1) is considered not to be an application filed in a prescribed
manner for the purposes of section 63(1) of IRPA in which case there would be no right of appeal
to the Immigration Appeal Division. Section 10(1) of IRP Regulations sets out the form and
content of an application.7
Section 65 of IRPA provides that in an appeal under subsection 63(1) or (2) respecting an
application based on membership in the family class, the Immigration Appeal Division may not
consider humanitarian and compassionate considerations unless it has decided that the foreign
national is a member of the family class and that their sponsor is a sponsor within the meaning of
the regulations. At issue is whether the appeal to the Immigration Appeal Division is
jurisdictional or non-jurisdictional.
Based on the wording of sections 63(1) and 65 of IRPA and subject to sections 10(1) and
10(6) of the IRP Regulations, Immigration Appeal Division panels have treated family class
sponsorship appeals as non-jurisdictional.8 While the Immigration Appeal Division may not be
6 M.C.I. v. Heera, Lilloutie (F.C.T.D., no. IMM-5316-93), Noël, October 27, 1994.
7 Where the sponsorship application is not filed in a prescribed manner per s. 10(6) of the IRP Regulations, any
refusal will be jurisdictional.
8 See for example Zeng, Qing Wei v. M.C.I. (IAD VA2-02640), Workun, April 22, 2003, where the appeal was
dismissed as the refusal was valid in law and not dismissed for lack of jurisdiction.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
5
able to exercise discretionary relief in favour of the appellant, it still has jurisdiction to hear the
appeal. Accordingly, if the appellant is successful, the appeal will be allowed based on the
refusal being not valid in law. If the appellant is not successful, the appeal will be dismissed
based on the refusal being valid in law. As noted above, this can be contrasted to the situation
under the former Regulations, where the appeal would have been dismissed for lack of
jurisdiction. Where the appellant is not successful, there will be no recourse to the discretionary
jurisdiction of the Immigration Appeal Division due to the application of section 65 of IRPA as
the applicant will have been determined not to be a member of the family class.
THE JURISPRUDENCE
The Test
Under the former Regulations the test for marriages for immigration purposes was twopronged;
the applicant had to be caught by both prongs of the test to be excluded from the family
class. To successful challenge this type of refusal, an appellant had to establish that the applicant
did not enter into the marriage primarily to gain admission to Canada or that the applicant
intended to reside permanent with the appellant.9
The test for adoptions for immigration purposes under the former Regulations had only
one prong, the child was not to be a person adopted for the purpose of gaining admission to
Canada or gaining the admission to Canada of any of the person’s relatives.
The Federal Court in a number of cases including Mohamed,10 Donkar,11 Ouk,12 Khella,13
and Khera14 has concluded that “section 4 of the Regulations must be read conjunctively, that is
the questioned relationship must be both not genuine and entered into primarily for the purpose
of acquiring any status or privilege under the Act”15 for the section to apply to exclude the
sponsored foreign national as a member of the family class. This means that section 4 of the IRP
Regulations applies to a relationship described in section 4 only if both of the two prongs of the
bad faith test apply to the relationship. Accordingly, to succeed in an appeal, the appellant need
only show that one of the two prongs does not apply to the relationship. This is unchanged from
9 Horbas v. Canada (Minister of Employment and Immigration), [1985] 2 F.C. 359 (T.D.), at 369. In Sanitchar,
Omeshwar v. M.C.I. (F.C. no. IMM-5233-04), Beaudry, July 25, 2005; 2005 FC 1015 the Court found that
Horbas continues to be useful for the purpose of the immigration element of the bad faith test under the IRP
Regulations. However, the Court noted that the element of the sponsored spouse’s intention of residing
permanently with the sponsoring spouse is no longer present under section 4 of the IRP Regulations.
10 Mohamed, Rodal Houssein v. M.C.I. (F.C. no. IMM-6790-05), Beaudry, June 5, 2006; 2006 FC 696.
11 Donkar, Sumaila v. M.C.I. (F.C. no. IMM-654-06), Mosley, September 12, 2006; 2006 FC 1089.
12 Ouk, Chanta v. M.C.I. (F.C. no. IMM-865-07), Mosley, September 7, 2007; 2007 FC 891.
13 Khella, Palwinder Singh v. M.C.I. (F.C. no. IMM-1811-06), de Montingny, November 10, 2006; 2006 FC
1357.
14 Khera, Amarjit v. M.C.I. (F.C. no. IMM-6375-06), Martineau, June 13, 2007; 2007 FC 632.
15 Donkar, supra, footnote 11.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
6
section 4(3) of the former Regulations where, as noted above, both prongs must apply for a
spouse to be excluded from the family class. Therefore, there is no need to pursue an analysis
with respect to the second prong when the first prong is not met.16
In Ni,17 the Court held that the test in section 4 of the IRP Regulations can only be applied
to a marriage defined in section 2 of the IRP Regulations, and to interpret “genuine” as meaning
“legal” would render section 4 of the IRP Regulations redundant.
In applying the new test, it will be necessary for the Immigration Appeal Division to
consider the meaning of “genuine” and the phrase “was entered into primarily for the purpose of
acquiring any status or privilege under the Act.” It appears that “genuine” encompasses factors
relevant to the second prong of the test from the former Regulations (“intention of residing
permanently with the other spouse”), although it appears to be broader and more flexible than
that test. 18 In Kang19 the panel agreed with the submissions of counsel for the Minister that a
genuine marriage is “one in which both parties are committed to living with one another for the
rest of their lives.” In Ouk,20 the Court noted that the focus of the examination under section 4 is
on the relation between the couple and that “while family connections may be seen as a
consideration to be weighed, the genuineness of the marriage should be a separate question from
concerns about familial connections.”21
In Khera,22 the Court in reviewing the panel’s decision that a marriage was caught by
section 4 noted as follows: “Indeed, the IAD was allowed to consider, and considered in its
decision, the length of the parties’ prior relationship before their arranged marriage, their age
difference, their former marital or civil status, their respective financial situation and
employment, their family background, their knowledge of one another’s histories (including the
applicant’s daughters’ ages and general situation), their language, their respective interests, the
fact that the sponsoree’s mother, two of his brothers, as well as aunts and cousins were living in
British Columbia, and the fact that the sponsoree had tried to come to Canada before.”
Member Hoare in Chavez23 had the following to say regarding genuineness:
16 M.C.I. v. Davydenko, Anna (F.C. no. IMM-1482-00), Pinard, March 30, 2001; 2001 FCT 257.
17 Ni, Zhi Qi v. M.C.I. (F.C. no. IMM-4385-04), Pinard, February 17, 2005; 2005 FC 241.
18 For a brief discussion of section 4 in relation to adoptions see chapter 4 of this paper, with that issue considered
in relation to common-law partners and conjugal partners in chapter 5 of this paper.
19 Kang, Randip Singh v. M.C.I. (IAD VA2-02099), Clark, June 3, 2003.
20 Ouk, supra, footnote 12.
21 In Ouk, supra, footnote 12, the Court noted at paragraph 17 that: “It was open to the appeal panel to find that
the sponsoree is inadmissible for misrepresentation pursuant to s. 40 of the Act or that the marriage is not
genuine, but the distinction between these two avenues of inquiry must be kept clearly separate.”
22 Khera, supra, footnote 14 at paragraph 10.
23 Chavez, Rodrigo v. M.C.I. (IAD TA3-24409), Hoare, January 17, 2005 at paragraph 3.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
7
The genuineness of the marriage is based on a number of factors. They are
not identical in every appeal as the genuineness can be affected by any
number of different factors in each appeal. They can include, but are not
limited to, such factors as the intent of the parties to the marriage, the length
of the relationship, the amount of time spent together, conduct at the time of
meeting, at the time of an engagement and/or the wedding, behaviour
subsequent to a wedding, the level of knowledge of each other’s relationship
histories, level of continuing contact and communication, the provision of
financial support, the knowledge of and sharing of responsibility for the care
of children brought into the marriage, the knowledge of and contact with
extended families of the parties, as well as the level of knowledge of each
other’s daily lives. All these factors can be considered in determining the
genuineness of a marriage.
Member Hoare went on in the same paragraph to comment on the second prong of the test
as follows;
The second prong of the test - whether the relationship was entered into
primarily for the purpose of acquiring any status of privilege under IRPA -
is self-evident and self explanatory. The advantage sought in spousal
appeals is generally entry to Canada and the granting to the applicant of
permanent resident status as a member of the family class.
Under the former Regulations, the word “primarily” in section 4(3) has been defined as
“of the first importance, chief.” Thus, the objective of gaining admission to Canada must be “the
dominant driving force” for the marriage before an applicant is caught by section 4(3) of the
former Regulations.24 A similar argument may be made under the current provision. In Lorenz25,
the Immigration Appeal Division panel found that immigration was probably a factor in the
applicant wanting to marry a Canadian, but that the evidence as a whole did not support a finding
that it was the primary factor.
The Court in Gavino26 concluded that so long as the primary purpose of the marriage was
to ensure that some privilege under IRPA would be conveyed to someone, the marriage fails the
second prong of the bad faith test. Section 4 does not require a consideration of whether that
primary purpose was achieved and a status or privilege was acquired. The privilege need not
accrue to the person applying for permanent residence. In this case, the purpose of the marriage
was to facilitate or permit the sponsorship of the person’s children.
It will be necessary for the Immigration Appeal Division to differentiate between the two
prongs of the test under the IRP Regulations. Is there an overlap between the first and the second
24 Singh, Ravinder Kaur v. M.E.I. (I.A.B. 86-10228), Chu, Suppa, Eglington (dissenting), August 8, 1988, at 5.
25 Lorenz, Hubert Calvin v. M.C.I. (IAD VA6-00444), Nest, June 15, 2007.
26 Gavino, Edwin Dorol v. M.C.I. (F.C., no. IMM-3249-05), Russell, March 9, 2006; 2006 FC 308.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
8
prong of the new test? It will also be necessary for the Immigration Appeal Division to
determine which prong would be emphasized in its decisions. As evident from the Immigration
Appeal Division decision in Chavez27, it appears emphasis is being placed on the “genuineness”
first prong of the test with that prong being the first prong to be analyzed by the panel.
Onus
Under the former Regulations, the Minister did not have the burden on an appeal to the
Immigration Appeal Division to demonstrate that the visa officer’s refusal of an application for
permanent residence was correct.28 The onus was on the appellant to prove that the applicant was
not caught by the excluding section (such as section 4(3))29 or met the requirements set out in the
relevant provision within section 6 (for example fiancées). Additional evidence that was not
before the immigration or visa officer could be taken into account by the Immigration Appeal
Division on appeal.30
Section 4 of the IRP Regulations does not change the onus or evidence that may be
presented at the appeal. The Federal Court has concluded that the onus is on the appellant to
show that section 4 does not apply to the relationship.31 In Thach,32 the Court rejected the
applicant’s submission that the Immigration Appeal Division erred in law by not finding that the
burden shifted to the Minister once an appellant has adduced evidence in support ot the
genuineness of the marriage as the onus was on the appellant to show his wife was a member of
the family class.
Intention
Under the former Regulations, the intention of the foreign spouse was paramount for
spousal sponsorship refusals for immigration purposes33 and the intention of both fiancées was
27 Chavez, supra, footnote 23.
28 Heera, supra, footnote 6.
29 S.G.C. v. Bisla, Satvinder (F.C.T.D., no. IMM-5690-93), Denault, November 28, 1994.
30 Kahlon, Darshan Singh v. M.E.I. (F.C.A., no. A-115-86), Mahoney, Stone, MacGuigan, February 6, 1989.
Reported: Kahlon v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 91 (F.C.A.).
31 See for example Morris, Lawrence v. M.C.I. (F.C. no. IMM-5045-04), Pinard, March 18, 2005; 2005 FC 369
and Khera, supra, footnote 14.
32 Thach,Phi Anne v. M.C.I. (F.C. no. IMM-5344-06), Heneghan, February 1, 2008; 2008 FC 133.
33 Bisla, supra, footnote 29.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
9
relevant for fiancée sponsorship refusals for immigration purposes.34 For adoptions sponsorships
refused for immigration purposes, no guidance was provided in the definition of “adopted” as to
whose intentions should be looked at (those of the adoptive parents, the natural parents, or the
child).
Section 4 of the IRP Regulations requires the assessment of the appellant’s and
applicant’s intention. In Gavino,35 the Court noted that the evidence of both spouses was
relevant to determining intention. An issue to be resolved is the relative weight to be given to the
appellant’s intention – should equal weight be given or should the applicant’s intention be given
greater weight. In Tran36 the panel concluded: “while the intentions of both the appellant and the
applicant must now be examined, it is the applicant’s intention that will remain a key
determinant.” In Duong37 the panel determined that it is the applicant’s intention that governs
stating: “… it is the applicant who wishes to come to Canada and if the applicant’s intentions
show that he/she is caught by the excluding provisions, then it is my view that this should take
precedence over the intentions of the appellant, which must also be assessed.”
FACTORS TO BE CONSIDERED
As noted in by the Federal Court and by the Immigration Appeal Division in Chavez,38
there are a number of factors that assist in determining whether a relationship is genuine or
whether the primary purpose of the relationship was for immigration purposes. Case law under
the IRP Regulations as well as from the former Regulations (which remains relevant in
considering these factors) have dealt with the following factors:
A) Inconsistent or contradictory statements
Where there are significant discrepancies between the information that a sponsor provides
to an immigration officer and the information that an applicant gives to the visa officer abroad
about such matters as the origin and development of the relationship between the couple, this
may result in a refusal. Allegations that an applicant’s lack of knowledge may have been caused
by difficulty with the interpretation at the interview must be supported by the evidence.39
34 Sidhu, Kulwant Kaur v. M.E.I. (I.A.B. 88-35458), Ahara, Rotman, Eglington (dissenting), August 25, 1988;
Rasenthiram, Kugenthiraja v. M.C.I. (IAD T98-01452), Buchanan, February 17, 1999.
35 Gavino, supra, footnote 26.
36 Tran, Quoc An v. M.C.I. (IAD TA2-16608), MacPherson, September 26, 2003.
37 Duong, Nhon Hao v. M.C.I. (IAD TA2-19528), D’Ignazio, November 12, 2003.
38 Chavez, supra, footnote 23.
39 M.C.I. v. Singh, Jagdip, (F.C.T.D., no. IMM-2297-01), Tremblay-Lamer, March 22, 2002; 2002 FCT 313.
[Judicial review of IAD VA0-00314, Mattu, April 26, 2001]. The Appeal Division found the applicant’s and
sponsor’s testimony regarding the circumstances of the marriage consistent. In granting the judicial review,
the Court concluded that “the evidence” did not support this finding in that the statement provided during the
applicant’s immigration interview and the sponsor’s testimony were inconsistent.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
10
As noted by the Court in Roopchand40: “The section [section 4 of the IRP Regulations]
raises questions of fact with respect to the intent and purpose of the sponsored spouse. As a
practical matter, a person’s intent is not likely to be successfully tested by a grilling crossexamination
designed to elicit an admission of fraud or dishonesty. Rather, in the usual case, the
trier of fact will draw inferences from such things as inconsistent or contradictory statements
made by the parties, the knowledge the parties have about each other and their shared history, the
nature, frequency and content of communications between the parties, any financial support, and
any previous attempt by the applicant spouse to gain admission to Canada.”
In Bhango,41 the Court noted that there must be a link between credibility issues of an
applicant and section 4 of the IRP Regulations.42
Procedural fairness does not require an immigration officer to give spouses the
opportunity to respond to discrepancies in the evidence they have presented in their separate
interviews.43
B) Previous attempts by applicant to gain admission to Canada
Relevant, though not conclusive,44 is the applicant’s history of previous attempts to gain
admission to Canada.45 A marriage contracted when removal from Canada is imminent, in and by
itself, does not support a conclusion that the marriage is not bona fide.46
40 Roopchand, Albert v. M.C.I. (F.C. no. IMM-1473-07), Dawson, October 26, 2007; 2007 FC 1108.
41 Bhango, Gurpal Singh v. M.C.I. (F.C. no. IMM-625-07), Dawson, October 5, 2007; 2007 FC 1028.
42 The Court in overturning an Immigration Appeal Division decision noted that the contradictions relied upon
have to be relevant to the point at hand which was whether or not the marriage was primarily for the purpose of
acquiring a status or privilege under IRPA: Habib, Mussarat v. M.C.I. (F.C. no. IMM-5262-06), Harrington,
May 16, 2007; 2007 FC 524. As noted by Justice Harrington in Owusu, Margaret v. M.C.I. (F.C. no. IMM-
1402-06), Harrington, October 6, 2006; 2006 FC 1195, the Immigration Appeal Division cannot engage in
conjecture as an evidentiary basis for finding that a marriage is a bad faith marriage.
43 M.C.I. v. Dasent, Maria Jackie (F.C.A., no. A-18-95), Strayer, Linden, McDonald, January 18, 1996.
44 Sandhu, Corazon Dalmacio Campos v. M.E.I. (I.A.B. 86-4082), Rayburn, Goodspeed, Arkin, April 7, 1987;
Malik, Estelita v. M.E.I. (I.A.B. 86-4271), Rayburn, Goodspeed, Petryshyn, April 11, 1988. A previous
application for permanent residence may show an applicant has an interest in admission to Canada but that does
not in itself establish that the applicant has become engaged primarily for that objective: Jung, Harry Kam v.
M.E.I. (I.A.B. 84-6237), D. Davey, Chambers, Anderson, May 17, 1985. Similarly, the mere fact that an
applicant has immigration problems does not necessarily lead to a conclusion that his marriage is for
immigration purposes: Sau, Cecilia Mui Fong v. M.C.I. (IAD V96-00079), Boscariol, January 2, 1997.
45 For example, marriage shortly after the refusal of a false refugee claim: Singh, Muriel v. M.E.I. (I.A.B. 86-
1098), Angé, Cardinal, Lefebvre, January 8, 1987. The Immigration Appeal Division is allowed to consider
that the sponsored spouse had tried to come to Canada before: Khera, supra footnote 14. In Akhlaq, Afshan v.
M.C.I. (IAD VA4-01933), Boscariol, June 16, 2005, the panel noted that the mere fact that the applicant had
made an effort to leave Pakistan in the past and had possibly made a false refugee claim in France did not
preclude him from entering into a genuine relationship with the appellant. In Aujla (Sidhu), Jagwinder Kaur v.
M.C.I. (IAD VA5-02812), Shahriari, April 17, 2007, no negative inference was drawn from the applicant's
previous unsuccessful attempt to come to Canada as an adopted child.
46 Maire, Beata Jolanta v. M.C.I. (F.C.T.D., no. IMM-5420-98), Sharlow, July 28, 1999.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
11
C) Previous marriages
Evidence of a prior marriage for immigration purposes, in and of itself, does not generally
provide a sufficient evidentiary basis for finding that a subsequent marriage is likewise one for
immigration purposes.47
D) Arranged marriages
The practice of arranged marriages does not in itself call into question the good faith of
the spouses as long as the practice is customary in their culture.48
E) Cultural Context
The Immigration Appeal Division in assessing the bona fides of a marriage must take into
consideration the cultural context within which the marriage took place.49 In Dhaliwal,50 the
Court held that the Immigration Appeal Division did take into consideration the cultural context
and found that the arranged marriage did not conform to Sikh tradition. The main explanation for
the marriage was destiny, with no evidence being provided as to the role of destiny in Sikh
culture. In Khan,51 the Court noted that the genuineness of a spousal relationship must be
examined through the eyes of the parties themselves against the cultural backdrop in which they
have lived.52
F) Mutual Interest
i) Knowledge about the other
One of the basic indicators of mutual interest between a sponsor and applicant is
knowledge about each other. However, the application of this criterion tends to vary according to
the nature of the marriage, that is, whether or not the marriage was arranged by the families of
47 Devia, Zarish Norris v. M.C.I. (IAD T94-05862), Band, April 23, 1996. See also Martin, Juliee v. M.C.I. (IAD
V95-00961), Lam, October 18, 1996. The Appeal Division’s decision was upheld on judicial review in M.C.I.
v. Martin, Juliee Ida (F.C.T.D., no. IMM-4068-96), Heald, August 13, 1997. In Martin, the applicant had been
married twice before to Canadian women who had sponsored, but had later withdrawn, their sponsorship of his
application.
48 Brar, Baljit Kaur v. M.C.I. (IAD V93-02983), Clark, July 7,1995. Reported: Brar v. Canada (Minister of
Citzenship and Immigration) (1995), 29 Imm. L.R. (2d) 186 (IAD). See also Cheng, Shawn v. M.C.I. (IAD
V96-02631), Boscariol, April 27, 1998 (even though marriage arranged by sponsor’s mother had probably been
for pragmatic reasons, it did not necessarily follow it was for immigration purposes). Contrast Cant, Bant
Singh v. M.C.I. (IAD V97-02643), Boscariol, January 12, 2000, where the arranged marriage defied important
societal norms.
49 Froment, Danielle Marie v. M.C.I. (F.C. no. IMM-475-06), Shore, August 24, 2006; 2006 FC 1002.
50 Dhaliwal, Jaswinder v. M.C.I. (F.C. no. IMM-1314-07), de Montigny, October 15, 2007; 2007 FC 1051.
51 Khan, Mohammed Farid v. M.C.I. (F.C. no. IMM-2971-06), Hughes, December 13, 2006; 2006 FC 1490.
52 See also, Siev, Samuth v. M.C.I. (F.C. no. IMM-2472-04), Rouleau, May 24, 2005; 2005 FC 736 where the
Court noted that case law has established that the evidence is not to be scrutinized and that North American
reasoning should not be applied to the sponsor’s conduct.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
12
the couple.53 In Froment,54 the Court found that the Immigration Appeal Division’s conclusion
that the sponsored spouse knew little about his wife’s activities was justified, and the
Immigration Appeal Division had the right to take this lack of knowledge into consideration.
ii) Contact between the couple
Of relevance in ascertaining intention is evidence suggesting that a sponsor and applicant
keep in touch and avail themselves of opportunities to spend time together. This includes
evidence of communication by telephone and mail; visits; cohabitation; consummation of the
marriage; the sponsor’s willingness to emigrate to the applicant’s country in the event of an
unsuccessful appeal; and expressions of love and affection.55
iii) Family ties
Depending on the cultural or religious context, the Immigration Appeal Division will
consider evidence regarding family ties, contact between the couple and their respective in-laws56
and the presence of members of both families at engagement and marriage ceremonies.57
However, as noted by the Court in Ouk,58 the focus of the examination under
section 4 of the IRP Regulations “is on the relation between the couple. While family
connections may be seen as a consideration to be weighed, the genuineness of the marriage
should be a separate question from the concerns about family connections.”
iv) Financial support and exchange of gifts
53 Sandhu v. Canada (Minister of Employment and Immigration), 4 Imm.L.R. (2d) 39; Bhangal, Baljit Singh v.
M.E.I. (IAD W90-00173), Goodspeed, December 6, 1991. In Basi, Navjot Singh v. M.C.I. (IAD V95-00664),
Lam, July 4, 1996, an adverse inference was drawn from the applicant’s lack of knowledge of the sponsor’s
education on the basis that in arranged marriages, the educational level of prospective spouses is an important
criterion of compatibility.
54 Froment, supra, footnote 49.
55 In Coolen, Andrea Van v. M.E.I. (I.A.B. 84-9741), D. Davey, Benedetti, Petryshyn, October 2, 1985, in
ascertaining whether or not there was an intention to reside permanently with the other spouse, the panel took
into consideration that neither the sponsor nor her spouse spent vacation or holiday time together. The panel in
Chaikosky, Marianne v. M.E.I. (I.A.B. 84-4156), Petryshyn, Hlady, Voorhees, June 7, 1985, took into account
whether or not the sponsor would be willing to emigrate to join the applicant in the event of an unsuccessful
sponsorship. See also Jassar, Surjit Singh v. M.C.I. (IAD V94-01705), Lam, May 14, 1996 (sponsor at no time
expressed any love or affection for the applicant).
56 Sandhu, Corazon Dalmacio Campos, supra, footnote 44.
57 Chaikosky, supra, footnote 55, where the panel noted that there were no members from either side of the family
at the civil marriage ceremony even though some of them lived in the same city where the ceremony had taken
place.
58 Ouk, supra, footnote 12.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
13
In relation to certain cultural contexts, the exchange of gifts59 and financial support60 have
been viewed favourably by the Immigration Appeal Division as indicators of a genuine
relationship.
v) Delay in submission of sponsorship application
Delay in submitting a sponsorship application may not be a significant factor in
repudiating the genuineness of a spousal relationship because if the marriage was for immigration
purposes, “the parties would not wish to delay the sponsorship application unduly, the ultimate
aim presumably, in both instances, being to get the applicant into Canada as soon as possible.”61
However, if there is no satisfactory explanation for the delay, it may be significant.62
vi) Persistence in pursuing appeal
A sponsor’s persistence in pursuing an appeal from a spouse’s refusal has been taken into
account in considering the genuineness of their marriage.63
v) Birth of a child
In Mansro,64 the Immigration Appeal Division panel held that while typically the birth of
a child is an important factor in considering whether a marriage is genuine, the existence of a
child is not determinative, and in that appeal the lack of credible evidence from the appellant and
applicant was so striking that it overwhelmed the fact that there was a child of the marriage. In
Aujla (Sidhu)65 the panel found that absent exceptional circumstances, a reasonable person
accepts the existence of a child as proof of a genuine spousal relationship.
G) “Compatibility”
The Immigration Appeal Division has been critical of some visa officers’ practice of
stereotyping a spousal relationship, as it is normally understood, based on the compatibility of
two persons as marital partners. As the Immigration Appeal Division has stated:66
It almost goes without saying that individuals with differences in religious
beliefs and backgrounds regularly marry in Canada, and are not normally
deemed, by virtue of that factor alone, to be incompatible as a married
59 Sandhu, Corazon Dalmacio Campos, supra, footnote 44.
60 Virk, Raspal Singh v. M.E.I. (I.A.B. 86-9145), Fatsis, Arkin, Suppa, December 18, 1986. Reported: Virk v.
Canada (Minister of Employment and Immigration) (1988), 2 Imm. L.R. (2d) 127 (I.A.B.).
61 Sandhu, supra, footnote 53 at 7-8.
62 Johal, Surinder Singh v. M.E.I. (IAD V87-6546), Wlodyka, Singh, Verma, February 15, 1989.
63 Bahal, Vijay Kumar v. M.C.I. (IAD T97-02759), Townshend, August 4, 1998.
64 Mansro, Gurmel Singh v. M.C.I. (IAD VA6-00931), Miller, July 18, 2007.
65 Aujla (Sidhu), supra, footnote 45.
66 Sandhu, Corazon Dalmacio Campos, supra, footnote 44 at 5-6.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
14
couple. The conclusion reached by the visa officer that a permanent marital
relationship was not contemplated appears to have been based solely on his
questionable definition of a normal spousal relationship.
In deciding upon the validity of refusals where incompatibility has been alleged,
differences in religion,67 education and language,68 and age69 have been examined. In Froment,70
the Court held that the Immigration Appeal Division could consider factors such as age and
differences in customs or language. It is not contrary to the Canadian Charter of Rights and
Freedoms to consider differences in age, education and marital status of the parties.71
H) Summary
The case-law indicates that no single criterion is decisive. It is the interplay of several
factors that leads the Immigration Appeal Division in any given case to make its finding as to the
genuineness, the purpose for, and intentions in respect of, a marital relationship or a relationship
between common law or conjugal partners.72
Timing
67 See, for example, Sandhu, Corazon Dalmacio Campos, supra, footnote 44, where the panel took into
consideration evidence that the sponsor and applicant did not perceive differences in their religions to be
problematic as they respected each other’s religion and attended each other’s place of worship together.
68 See, for example, Dhillon, Gurprit Singh v. M.E.I. (I.A.B. 89-00571), Sherman, Ariemma, Tisshaw, August 8,
1989, where the panel acknowledged that incompatibility in education and language alone were generally
insufficient to found a refusal, but took them into consideration, together with other factors such as the
sponsor’s lack of knowledge about his spouse’s background, to conclude that the marriage was for immigration
purposes.
69 See, for example, Dhaliwal, Rup Singh v. M.C.I. (IAD V96-00458), Jackson, September 5, 1997, where the
panel accepted the evidence of the visa officer that an age difference of two to five years is considered
reasonable for purposes of compatibility in an arranged marriage and concluded that the 14-year age gap
between the sponsor and applicant was not reasonable. In Glaw, Gerhard Franz v. M.C.I. (IAD T97-02268),
Townshend, July 21, 1998 but for the 40-year age difference between the sponsor and applicant, the panel
would have had no difficulty in concluding the relationship to be genuine. The panel concluded that the age
difference ought not to change the panel’s view as it was not for the panel to judge whether or not a man in his
60s should marry a woman in her late 20s, a matter of individual choice. In Sangha (Mand), Narinder Kaur v.
M.C.I. (IAD V97-01626), Carver, September 21, 1998, the sponsor’s astrological attributes were more
important to the applicant than differences in age and marital background. In Judge, Mansoor Ali v. M.C.I.
(IAD TA3-20841), Leonoff, July 25, 2005, the panel noted that while there was a considerable age difference
between the parties; a finding of a bad faith relationship could not be based on the age disparity alone.
70 Froment, supra, footnote 49.
71 Parmar, Charanjit Singh v. M.C.I. (IAD V98-04542), Boscariol, November 23, 1999.
72 See, for example, Sidhu, Gurdip Singh v. M.E.I. (IAD W90-00023), Goodspeed, Arpin, Rayburn,
September 12, 1990, where the panel gave little or no weight to evidence of differences in age and education in
view of evidence of other important factors in arranging a traditional Sikh marriage.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
15
Under the former Regulations, intention was considered as at the date of the marriage,
engagement or adoption.
Regarding the timing of the assessment of “genuineness’, section 4 inquires into whether
or not the relationship is genuine or was entered into primarily to acquire status under IRPA.
With respect to the “genuineness” prong of the test, the inquiry is phrased in the present tense
“suggesting an on-going inquiry, not necessary fixed at the time of marriage.”73 This would
appear to require an assessment of the “genuineness” of the relationship as at the date of the
hearing.74
The Court in Donkar noted that section 4 does not state that the time of the marriage is
the time at which the genuineness of the relationship is to be assessed. The section “speaks in the
present tense for a determination of the genuineness of the relationship and in the past tense for
assessing the purpose for which it was created. This appears to be consistent with the practice
followed by Immigration Officers in assessing spousal sponsorship applications. It appears, from
the cases the Court has seen, that in interviews with claimants (sic) and their putative spouses the
officers focus on whether there is a continuing relationship.”75 In applying the second prong of
the test, the time of assessment should be the date of entry of the relationship.76
It may be necessary to consider the impact of section 121 of the IRP Regulations and
whether or not that section requires that the relationship be genuine from the date of application
to the final determination of the application.
Evidence
Under the former Regulations, evidence on the first prong of the test of whether the
relationship was primarily for immigration purposes for marriages and engagements could be
used in connection with the second prong of that test77 with the analysis of most panels being
directed at the primary purpose of the marriage or engagement.
In Gavino, the Court could not see why the evidence examined by the Immigration
Appeal Division panel to decide the marriage was not genuine would not also have relevance
when the panel turned its mind to motivation.”78 There appears to be no reason why evidence
from one prong of the new test cannot be used in any analysis of the second prong.
73 Vuong, Phuoc v. M.C.I. (IAD TA2-16835), Stein, December 22, 2003.
74 Gill, Ranjit Singh v. M.C.I. (IAD VA2-03074), Kang, November 12, 2003.
75 Donkar, supra, footnote 11, at paragraph 18.
76 Donkar, supra ,footnote 11.
77 Bisla, supra, footnote 29.
78 Gavino, supra, footnote 26.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
16
An issue that often arises in a section 4 appeal hearing is whether or not the applicant
must testify, and if the applicant does not testify whether a negative inference should be drawn.
In Mann,79 a negative inference was not drawn by the Immigration Appeal Division from
the applicant's failure to testify as the testimony of the appellant, combined with the
documentary evidence, was sufficiently persuasive for the panel to decline to draw a negative
inference from the failure of the applicant to testify. The panel noted that with respect to the
second prong of the test under section 4 of the IRP Regulations, the intentions of the applicant
are still important, as it is the applicant who typically has the most to gain from an immigration
perspective. However, with respect to the first prong of the test - whether the marriage is
genuine - it is the intentions of both the appellant and applicant that are significant. By focusing
the inquiry on the broad question of whether the marriage is genuine, Parliament intended a shift
away from a narrow focus on the applicant's intentions at the time of the marriage. The panel
held that the testimony of the appellant alone can suffice to persuade the panel of the bona fides
of the parties' intentions.
The panel in Mann80 went on to note that there are cases in which the testimony of the
applicant will be necessary to successfully discharge the evidentiary burden. Appeals in which it
might be advisable or even necessary to call the applicant as a witness include circumstances
such as the following:
Where there are specific and significant inconsistencies in the record – as between the
appellant and the applicant or within the applicant’s own answers;
Where the applicant has a questionable immigration history;
Where there is an obvious reason to question the motivation of the applicant, such as
where there is persuasive evidence that the applicant is using the appellant to acquire status in
Canada;
Where there is minimal or inadequate documentary evidence to corroborate the testimony
of the appellant.
The panel noted that: “these circumstances are not exhaustive. Nor are they mutually
exclusive. However, in some cases, even where the above problems exist, the appellant alone
may be able to persuasively explain the problem. The decision whether to call the applicant as a
witness is individual to each appeal and in the view of the panel, should be based on the quality
of the available other evidence in its entirety. As noted above, even where one of the above
circumstances exists, the testimony of the appellant alone may suffice to discharge the
evidentiary burden. In some appeals, it may be sufficient for the applicant to provide evidence
via sworn Affidavit.”81
The Immigration Appeal Division has commented in another case as follows where the
sponsored spouse was not called to testify by the appellant whom the panel had found to have
provided credible testimony: “The appellant made a judgment decision in this regard and he
79 Mann, Jagdeep Kaur v. M.C.I. (IAD TA3-19094), Stein, August 5, 2005.
80 Mann, supra, footnote 79 at paragraph 14.
81 Mann, supra, footnote 79 at paragraph 15.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
17
concluded that the applicant was not needed, and that the panel had all the evidence it needed to
make its decision, I draw no adverse inference from the applicant not giving her evidence at the
hearing. Her evidence in detail was given to the visa officer and is contained on the CAIPS
notes. Some of it is accurate and some of it is not, but on balance, the panel finds that the
applicant’s evidence with respect to the core issues, where it overlaps with the appellant’s
evidence, does confirm and corroborate the same.” 82
CHANGE IN MARITAL STATUS
Where a common law or conjugal partner marries a sponsor at some time during the
processing of an application for permanent residence, the issue arises whether or not to continue
to treat the application as that of a common law or conjugal partner.83
A) Marriage after filing of undertaking of assistance, but before filing of application for
permanent residence
The relevant date for determining marital status is the date an applicant swears to the truth
of the contents of the application for permanent residence.84
B) Marriage after filing of undertaking of assistance and application for permanent
residence, but before refusal of application
The Federal Court has held that a marriage post-dating an application for permanent
residence of a fiancé(e) is irrelevant in dealing with the application.85 The Court added that any
form of marriage must be considered a positive factor in resolving the issue of the sincerity of a
sponsor and applicant to be married if the applicant is admitted to Canada.
C) Marriage after refusal, but before hearing of appeal
The general approach, based on Kaur,86 a case involving a fiancé(e) application under the
former Regulations, is that the initial application by the applicant is to be dealt with entirely
without reference to a subsequent marriage.87
82 Mann, Pitter Ali Ram v. M.C.I. (IAD TA6-13395), Band, December 21, 2007 at paragraphs 15 and 16.
83 In a case involving a fiancé under the former Regulations, the visa office may treat an intervening marriage as
indicative of a new application: Kaur, Amarjit v. M.C.I. (IAD T97-03654), Buchanan, June 24, 1999.
84 Owens, Christine Janet v. M.E.I. (F.C.A., no. A-615-83), Urie, Le Dain, Marceau, March 27, 1984. Thus
where a sponsor married her fiancé after the undertaking of assistance was filed but before the filing of the
application for permanent residence, the application ought to have been assessed as a spousal one: Gill, Balbir
Kaur v. M.E.I. (I.A.B. 88-00074), Wlodyka, MacLeod, Verma, February 7, 1989. As previously noted, under
the IRP Regulations a fiancé(e) is not a member of the family class unless the applicant is within the definition
as a common law or conjugal partner.
85 Kaur, Gurmit v. C.E.I.C. (F.C.T.D., no. T-2490-84), Jerome, May 8, 1985. Kaur was followed in Dhaliwal,
Charanjit Kaur v. M.E.I. (I.A.B. 85-6194), Ariemma, Mawani, Singh, May 7, 1987.
86 Kaur, supra, footnote 85.
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
18
D) Marriage after commencement, but before completion of hearing of appeal
Where an applicant marries a sponsor after the commencement of the appeal hearing, the
appeal is heard as a common law partner or conjugal partner appeal.88
E) Summary of change in status
The Immigration Appeal Division typically views the critical time for determining the
status of an applicant (i.e. spouse, common law or conjugal partner) to be the date of the
swearing of the application for permanent residence, takes as determinative the applicant’s status
at that point in time, and considers a subsequent marriage as evidence in favour of the
genuineness of the relationship if consistent with other evidence.89
As summarized by the Immigration Appeal Division in relation to a former Regulations
fiancée appeal:90
[...] in the Board’s opinion, the decision in Kahlon91 does not, without more,
have the effect of converting the application from one of a fiancée to one of a
spouse, nor consequently have the effect of automatically converting an
appeal from a fiancée refusal to one from a spousal refusal. What it does is
to enable the Board to take into account the subsequent marriage of the
parties and the circumstances surrounding it and any other evidence which
exists at the time of the hearing in reaching its decision. The issue
nevertheless remains the inadmissibility of the applicant as a fiancée.
F) Converting spousal application to a conjugal or common law partner
application
In unique circumstances,92 and sometimes with the consent of counsel for the Minister (or
on the panel’s own application), the Immigration Appeal Division has “converted” a spousal
87 Khella, Kulwinder Kaur v. M.E.I. (IAD V89-00179), Singh, Angé, Verma, June 29, 1989. See also Bhandhal,
Amanpreet Kaur v. M.E.I. (IAD T89-06326), Bell, Tisshaw, Townshend, April 4, 1990; and Su, Khang San v.
S.S.C. (IAD T93-12061), Aterman, June 1, 1994.
88 In a fiancé appeal under the former Regulations: Chow, Wing Ken v. M.E.I. (I.A.B. 86-9800), Tisshaw, Jew,
Bell (dissenting), July 8, 1988. Reported: Chow v. Canada (Minister of Employment and Immigration) (1988),
6 Imm. L.R. (2d) 97 (I.A.B.).
89 See, for example, Mann, Paramjit Kaur v. M.E.I. (IAD V89-00516), Chambers, Gillanders, Verma, March 20,
1990; Bhandhal, supra, footnote 87; Ta, Suy Khuong v. M.C.I. (IAD W99-00121), D’Ignazio, November 21,
2000.
90 Gill, Manjeet Singh v. M.E.I. (IAD V87-6408), Mawani, MacLeod, Verma, August 16, 1989, at 3.
91 Kahlon, supra, footnote 30, where it was held that a hearing of an appeal by the Immigration Appeal Board is a
hearing de novo in a broad sense.
92 Usually where a sponsor and applicant genuinely believe they are validly married but later discover there is a
defect in regard to the marriage including an invalid proxy marriage. Under the former Immigration
Regulations the conversion was to the status of a fiancé(e).
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
19
application to that of a conjugal or common law partner.93 By treating an applicant as a conjugal
or common law partner, the applicant continues to be a member of the family class and the
sponsor is not required to recommence the immigration process with a new application. The
Immigration Appeal Division panel in Tabesh94 concluded that if a person applies as a member of
the family class as a spouse and the refusal is based on the formal validity of the marriage, it is
incumbent on the visa officer to consider as well whether the person could be either a conjugal or
common-law partner. A failure to do so could give rise to multiple refusals and appeals on
essentially the same facts. The determination of all categories within the one class of marital,
conjugal or common-law partners could be made by the Immigration Appeal Division even in the
absence of an application by a party to amend the grounds of refusal.
REPEAT APPEALS – RES JUDICATA AND ISSUE ESTOPPEL
A) Introduction
IRPA contemplates that there may be re-applications in immigration matters and hence
the possibility of repeat appeals to the Immigration Appeal Division.
In some repeat appeals, for example, from financial or medical refusals, it is
acknowledged that circumstances may change following the first appeal, and the Immigration
Appeal Division may evaluate evidence of improved fiscal or physical health on a repeat appeal
from a second refusal.
However, in marriage and adoption applications, there is limited fluidity with respect to
the point at which the determination is made as to whether the applicant is a member of the
family class: that point in time is fixed by legislation. In repeat appeals from marriage or
adoption refusals, the evidence must always relate to the intention at the time the applicant was
purported to become a member of the family class. Repeat appeals from these refusals require a
more restrictive approach.
Two tools are available to the Immigration Appeal Division to deal with attempts to
relitigate unsuccessful appeals: the doctrines of res judicata and abuse of process. The former
has specific criteria which must be met before it can be applied, while the latter has developed as
a more flexible doctrine meant to encompass situations that may not meet the stricter res judicata
criteria. While res judicata will be the most appropriate doctrine to apply in most marriage and
adoption repeat appeals, abuse of process is available in appropriate cases and may be used
instead of, or in conjunction with, a finding of res judicata.
93 Tabesh, Rita v. M.C.I. (IAD VA3-00941), Wiebe, January 7, 2004; See also, Ur-Rahman, Mohammed v. M.C.I.
(IAD TA3-04308), Collins, January 13, 2005.
94 ibid
Sponsorship Appeals Legal Services
January 1, 2008 Bad Faith Family Relationships - Ch. 6
20
B) Doctrine of Res Judicata
Res Judicata has two forms: issue estoppel and cause of action estoppel. The form that is
relevant to repeat appeals is issue estoppel and it is often referred to generically as res judicata.
There are three requirements for issue estoppel/res judicata to apply;
i. that the same question has been decided
ii. that the judicial decision which is said to have created the estoppel was
final; and
iii. that the parties to the judicial decision or their privies95 were the same
persons as the parties to the proceedings in which the estoppel is raised or
their privies.96
The doctrine avoids the potential to have inconsistent decisions in which a previous
decision is undermined by a finding on a repeat appeal.
Issue estoppel is a common law rule of public policy that balances the right
of a plaintiff to litigate an issue against the court’s concern as to duplication
of process, use of its limited facilities, concern for conflicting findings of
fact, and for achieving justice between litigants.97
In the context of appeals before the Immigration Appeal Division, res judicata is always
appropriate for consideration. This is because in the majority of repeat appeals all three criteria
set out above are present. In the usual scenario the appellant has commenced a new sponsorship
application following the dismissal of his first appeal. An immigration officer has refused the
application and the appellant appeals the new refusal to the Immigration Appeal Division. The
decision made by the Immigration Appeal Division on the first appeal was final and the parties
(applicant, appellant and Minister) are the same. Most of the time, the remaining criterion –
same question to be decided - is also met: for example, the immigration intention of the parties at
the time of the marriage, the genuineness of the marriage or the genuineness of a parent/child
relationship in an adoption.98
95 Black’s Law Dictionary defines privy as one who has acquired an interest in the subject matter affected by the
judgment through or under one of the parties.
96 Angle v. Minister of National Revenue (1974), 47 D.L.R. (3d) 544 (S.C.C.) at 555-56. See also, The Doctrine
of Res Judicata in Canada, Donald J. Lange, (Butterworths, Toronto, 2000) at 23.
97 Machin et al v. Tomlison (2000), 51 OR (3d) (OCA) 566 at 571.
98 Sometimes the issue may be characterized as different on a second appeal, but it is really the same issue as in
the first appeal because it involves an analysis of the same facts. What may be phrased as a separate issue may
in fact be different facets of the same issue based on the same basic underlying facts. For example, a finding
that the intention on an adoption was for immigration purposes cannot really be separated from a finding on the
genuineness of the parent child relationship. The underlying facts are intertwined. Please see M.C.I. v. Sekhon,
Amrik Singh (IAD T99-05069), Sangmuah, March 30, 2001, at 17, where the Immigration Appeal Division
stated; “In my view, short of refusing an application or dismissing an appeal on the ground that the adoption
did not comply with the laws of the jurisdiction in which it took place, a decision-maker cannot avoid an
inquiry into the intent behind the adoption. A finding that it was entered into primarily for immigration
purposes essentially determines the application against the applicant or the appeal agains
