The CRAZY CBSA officer thinks my wife is married already!!

[GandiBaat]

I agree overall - I'm just noting that it only refers to divorce decree from SK (without saying it must be South Korea, just an implication that is the case). So not clear where they think the marriage took place. And not clear it refers to a south korean national. Just that there should have been a divorce, possibly in korea.

The funny this is that they mentioned SK at all. Sure as hell OP would not have included SK in his application.
SK is also not a five-eye country, so there will not be an automated sharing of info. So, what made IRCC include SK?
Her travel history? I am not sure if that flows automatically as well. Not all Countries share their entry and exit data.

The only way I can think of that SK is coming is via nationality of her ex.

 

[k.h.p.]

Well, IMHO, the act is a bit complex in this case. I would let a professional handle it. It has many "unless" and "if" in it. Apparently, he cann't but his wife can appeal as a sponsor. Which makes things even more complex because IRCC is claiming that she cann't sponsor him under family because she was married to someone else before and there has not been an evidence of divorce. How will it be interpreted in appeal process? I don't know. Its not straight forward.

You have to read the Act and the Regulations together.

The only appeals allowed under Part 7 of the Act are:

• Visa refusal of family class (this is where you're reading "A person who has filed ... an application to sponsor")
• Removal orders for PR visa holders
• Removal orders for PRs or protected persons
• Residency obligation appeals
• The Minister's own decision to appeal

However, the Inland sponsorship ("Spouse or Common-Law Partner in Canada Class") is not the Family Class. You'd know this if you ever filled out a spousal sponsorship form - if you are applying inland in order to be considered for the OWP, you cannot choose the Family Class.

The Regulations in Part 7 define the Classes; with Division 1 being "Family Class," and Division 2 being "Spouse or Common-Law Partner in Canada Class."

So:

1. Inland applications are filed under the "Spouse or Common-Law Partner In Canada Class" and not Family Class
2. The only appeals allowed are Family Class refusals
3. Inland applications are not Family Class applications
4. Inland applications cannot be appealed to the IAD

 

[GandiBaat]

However, the Inland sponsorship ("Spouse or Common-Law Partner in Canada Class") is not the Family Class. You'd know this if you ever filled out a spousal sponsorship form - if you are applying inland in order to be considered for the OWP, you cannot choose the Family Class.

Right, even his PFL says it is a Spouse or Common-Law Partner in Canada Class.

That being said, it is possible for someone in Canada to apply for a Family Class. In Canada appliction is not necessarily Spouse or Common-Law Partner in Canada Class.

 

[k.h.p.]

Right, even his PFL says it is a Spouse or Common-Law Partner in Canada Class.

That being said, it is possible for someone in Canada to apply for a Family Class. In Canada appliction is not necessarily Spouse or Common-Law Partner in Canada Class.

An "inland" application as we speak of it here is a Spouse or Common-Law Partner in Canada class. The other scenarios are "outland applied in Canada"

 

[scylla]

Right, even his PFL says it is a Spouse or Common-Law Partner in Canada Class.

That being said, it is possible for someone in Canada to apply for a Family Class. In Canada appliction is not necessarily Spouse or Common-Law Partner in Canada Class.

Yes, it's possible to sponsor a spouse from inside of Canada using the outland process. However the wording you've quoted from the PFL confirms this was filed as in inland application. So no IAD. Judicial Review only.

 

[GandiBaat]

Yes, it's possible to sponsor a spouse from inside of Canada using the outland process. However the wording you've quoted from the PFL confirms this was filed as in inland application. So no IAD. Judicial Review only.

I totally agree. Thats why I said it in the first line.

 

[helpwhattheheck]

I would spend less time thinking about whether there is bias and whether IRCC/CBSA officers are 'crazy.' It's not productive.

The chances are very high that IRCC/CBSA have some concrete evidence that (they believe) shows your spouse was previously married. They would not put this as a reason for refusal without evidence - they know it will be subject to review.

And to be blunt, one of the possible or even likely outcomes is discovering your wife was in some relationship that she thought "didn't count" as marriage. Something in the history or available information indicates there was a marriage.

A few questions:
-were you previously married?
-is your spouse's ex a South Korean national?
-did she/they travel to other countries where 'traditional' marriages (eg religious) are considered legal? Partake in any betrothal / blessing ceremonies? (Particularly relevant if the ex was also a foreign national of another country - note the PFL refers to a divorce decree from South Korea, but does not specify where the marriage may have taken place)
-did your spouse live in any other countries?

Dig deep, it's unlikely that this is a pure error or fantasy from the officer - not impossible, but unlikely.

None of us were married
Her ex bf was SK national
No
Never lived in other countries

Its just bizarre, we did get a lawyer and even the lawyer is having a hard time gathering evidence because theres no such thing. Can't really prove someone is "divorced" when they were never married. How can someone prove a marriage did not take place...if it did not take place. Unless we have a potential suspect name and then try to prove that person specifically never married my wife, we are basically looking for a needle in a haystack. For Foreigners to Korea they would register their marriages with their home countries and the Korean officials would accept it. The Korean officials have told my wife and my lawyer 4 times now that "We do not deal with this, to prove you are married please contact your local government because they have records on your marriages"

 

[canuck78]

None of us were married
Her ex bf was SK national
No
Never lived in other countries

Its just bizarre, we did get a lawyer and even the lawyer is having a hard time gathering evidence because theres no such thing. Can't really prove someone is "divorced" when they were never married. How can someone prove a marriage did not take place...if it did not take place. Unless we have a potential suspect name and then try to prove that person specifically never married my wife, we are basically looking for a needle in a haystack. For Foreigners to Korea they would register their marriages with their home countries and the Korean officials would accept it. The Korean officials have told my wife and my lawyer 4 times now that "We do not deal with this, to prove you are married please contact your local government because they have records on your marriages"

Assume the evidence relates to her ex bf. Get information about him showing he has never been married. It would obviously be easier with his participation. Things like previous tax records, ID filings, etc. Collect the same info from her. This isn't rocket science so a lawyer should be able to figure this out.

 

[k.h.p.]

It strikes me as most likely that the ex said he was married for the purposes of a visiting visa or similar to Canada and that's in IRCC records. You'll need to sort out how you prove that the ex was lying. Good that you have a lawyer, since they're paid more than free volunteers on an internet forum to do this research for you

 

[canuck78]

It strikes me as most likely that the ex said he was married for the purposes of a visiting visa or similar to Canada and that's in IRCC records. You'll need to sort out how you prove that the ex was lying. Good that you have a lawyer, since they're paid more than free volunteers on an internet forum to do this research for you

More than proving he lied on whatever application or communication you need to prove that neither the woman and ex bf were ever married.

 

[k.h.p.]

More than proving he lied on whatever application or communication you need to prove that neither the woman and ex bf were ever married.

True.

South Korea will indeed issue marriage certificates to foreigners married in Korea and to foreigners marrying South Koreans in Korea (I know as I very nearly got married in Seoul); if the ex was a South Korean national, you need to prove that the ex was not married in South Korea.

 

[canuck78]

True.

South Korea will indeed issue marriage certificates to foreigners married in Korea and to foreigners marrying South Koreans in Korea (I know as I very nearly got married in Seoul); if the ex was a South Korean national, you need to prove that the ex was not married in South Korea.

They both must have been filing out tax records, visas, there may be a census, passport applications, etc. All of these things will show marriage status of both the woman and the ex bf. If your wife is not comfortable contacting her ex BF would suggest OP contact him. Would keep it civil and ask he could help with documentation. That would make things much easier.

 

[GandiBaat]

True.

South Korea will indeed issue marriage certificates to foreigners married in Korea and to foreigners marrying South Koreans in Korea (I know as I very nearly got married in Seoul); if the ex was a South Korean national, you need to prove that the ex was not married in South Korea.

Interestingly, SK has a "family registry" kind of system. Since all marriages in SK are purely "civil unions", all legal marriages are to be registered. Meaning, you can possibly do a "search" in the family registries to see if a particular person is appears as married into a family registry or not.

I am speculating that there must be people doing that kind of search in SK to check if their prospective husband or wife are already married or not.

There is one fly in this entire ointment though.....

She returned to Canada with him... That makes things troublesome. Canada herself recognizes religious marriages.

 

[GandiBaat]

No

She travelled with him to Canada... and Canada recognizes religious marriages.

 

[GandiBaat]

Its just bizarre, we did get a lawyer and even the lawyer is having a hard time gathering evidence because theres no such thing. Can't really prove someone is "divorced" when they were never married. How can someone prove a marriage did not take place...if it did not take place. Unless we have a potential suspect name and then try to prove that person specifically never married my wife, we are basically looking for a needle in a haystack. For Foreigners to Korea they would register their marriages with their home countries and the Korean officials would accept it. The Korean officials have told my wife and my lawyer 4 times now that "We do not deal with this, to prove you are married please contact your local government because they have records on your marriages"

You are basically being asked to provide a devil's proof (Prove that devil does not exists, its an evidence pattern : https://en.wikipedia.org/wiki/Probatio_diabolica ).

You are being asked to give a divorce documentation FROM ALL COUNTRIES INCLUDING SK.
But since you are saying that she never married in the first place, it means now you have to prove that she never married ANYWHERE and TO ANYONE.
Proving negatives like that is HARD.

What you need to do is to find a proof that she never married in SK and that her legal marriages in SK does not exist. That should be a starting point. Beyond that, only a good lawyer can provide help.

Interestingly, IRCC has not opened their own cards, so you don't know what they have on her. Proving what they have on her incorrect may be easier. But, I doubt IRCC will provide that evidence for examination unless challenged in a court of law. I may be wrong, others like @k.h.p. and @scylla may know more.

If you are denied your application, assuming yours is a genuine case, I think it will be denying fairness by the burden of legal cost.