Another day another immigration appeal hearing. This last was in Winnipeg; my client was married in 2013; application was refused by CHC Delhi in 2015; now 4 years after the marriage, success.
In many spousal interviews, the applicant is damned if s/he does and damned if s/he doesn't. In this case the visa officer in Delhi had concerns that my client's husband knew (detailed) answers to his/her questions -apparently this raised a red flag and this was one of the reasons the application was refused. This is of course a no win scenario. When overseas applicants don't know enough of their Canadian sponsors, the application is refused, and when they do know, it still gets refused.
In this case, the Officer found that the Applicant's precise answers regarding key dates indicate that he memorized information. More specifically, during the interview in New Delhi, the Officer notes the following:
“When interviewed he demonstrates that he knows some information by heart. He knows precise dates by heart.”
The Officer castigated the applicant for his accurate recollection of the key dates surrounding the marriage, rather than weighing it as evidence to support the genuineness of their relationship. The Officer places the Applicant in an impossible situation, as was the case in Sandhu v. Canada (Minister of Citizenship and Immigration) 2014 FC 1061 per Justice de Montigny as follows [emphasis added]:
 “...For example, the Board member found that because the Applicant’s husband knew details about her life, including her address, that he “either memorized or read out the address of the applicant with its postal code in order to try to show he is knowledgeable” about her. Not only is this mere speculation, but it also puts the Applicant in an impossible situation...”
Moreover, in Paulino v Canada (Minister of Citizenship and Immigration), 2010 FC 542 (CanLII), Justice Russell at the Federal Court states that,
“[a] detail … that might support the genuineness of the relationship is turned around to support a negative finding because it is likely integral to a complex scheme of fabrication” (at para 58).
The Officer’s concern that the Applicant memorized the information is not only speculative, but also turns the evidence into a negative finding without merit. Even more astounding, is the manner in which the Officer discounts significant portions of the evidence. More specifically the Officer notes the following:
“How long was the meeting? Long answer describes the day to evening.”
The Applicant's cogent recollection of their first meeting was not noted by the Officer, nor was it given any weight as a strong indicator of genuineness. Furthermore, this comment suggests that the Officer has a closed mind regarding the genuineness of the relationship. Of course, if the Applicant gave a short, vague answer regarding the first meeting, this would have led to a negative inference or finding.
The Officer then expresses a concern that the Applicant's answers are vague regarding his wife's studies in Canada. This finding is made despite the Applicant's knowledge of the name of her school, that she is currently taking six subjects, that her studies are related to computers and issuing cheques, and that it takes 30 minutes for her to travel to the school by bus.
The Officer also takes issue with the Applicant’s answers regarding his wife’s family, finding again that the answers are vague. The following exchange took place:
Q: Who does she live with in Canada?
A: Father, mom, sister and brother-in-law. And one brother.
Q: Does the sister have children?
A: Yes the sister has one son....
Q: How old is the son?
A: Three years old.
Q: What does your brother in law do for a living?
A: He is a taxi driver.
Q: Does he own the cab?
A: No he is just a driver.
Q: Does your wife’s sister work?
Q: What does she do?
A: At a medical clinic.
Despite the Officer's finding that the above-exchange is vague, it is clear that the Applicant has precise knowledge of his in-laws, including details of their respective occupations and details about their children.
The Officer also takes issue that the Applicant waited a year to submit the application. Again this places the Applicant in an impossible situation; he is castigated for applying too late, however, if in the alternative, he applied at an earlier date (I'm sure the Officer would have found that to display an urgency, a desperation to come to Canada) he could also be criticized for it. The couple cannot win.
It is true that the original application was thin. For whatever reason, there counsel in Brampton thought providing 8 photographs with the application to sponsor was sufficient. I was retained for the appeal and we fixed the thin application with additional disclosure - proof of contact, communication, return trips, photographs, hotel, and other sundry receipts. It is also true that the marriage took place 9 days after their first meeting. This was not explored by the Officer, but the explanation was very straightforward; the Sponsor had gone to see her father, the entire family was there and rather than proceed with the initial plan (if the match was agreed to that she would return after 6-10 months to marry) which might entail some family members missing her wedding, she decided to get married and extended her trip by a further 3 months to stay with her husband.
I'm sure that if she had proceeded with the original plan and some key family members couldn't attend, a visa officer would find that to be a red flag.
Preparation is key for every appeal and immigration hearing. Here we devoted about 3 hours of preparation for every one hour of booked hearing time.
Remember - There are no Immigration Appeal Members in Winnipeg. Hearing dates are few and far between. Most hearings here are by video. Out of town hearings are also difficult because the IRB can change the date, place of the hearing with little notification. This morning we ended up at the Courts Administration on Broadway (as per the Notice) and learning upon arrival that they had no clue as to the hearing. Thanks to Registry staff enquiries we raced off to Main Street; but not a great way to start any appeal or hearing.
At this point mistakes are costly; there is no real appeal of a refusal (only judicial review).
Like visa officers, hearings officers bring their own subjective, and cultural world view/perspectives to bear. We were lucky enough to encounter a hearings officer that approached this Appeal with an open mind (thank you Mr. G. Hill).
After listening to the sponsor - a young woman that credibly explained the concerns over the haste in marriage, the delay in sponsorship, her inability to visit in 2014 and 2015 (due to the aforementioned studies and her expectation that he would be coming in any event in those years), and her husband's initial telephone interview (problematic because of a bad connection) and the testimony of her husband who was able to corroborate his wife's testimony, Minister's counsel was able to consent to the appeal. As a result, we avoided lengthy interrogation of the husband overseas and further submissions and then having the IAD Member making the call (although I would have been confident in the outcome).
It'll take another 6+ months, but my clients husband should be in Canada for their 5th wedding anniversary.