The Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) handles appeals of refused spousal sponsorships made outside Canada. In the words of Justice Barnes,
The Board's task is not an easy one because the genuineness of personal relationships can be difficult to assess from the outside.
Gill v. MCI 2010 FC 122
Nonetheless, the IAD
must proceed with great care because the consequences of a mistake will be catastrophic for the family (Gill, para 6)
Justice Barnes seems to create a presumption that a child born of the marriage is indicative of a genuine relationship and endorses the position that strong countervailing evidence would be required to off-set that presumption. (Gill, para. 6, 8, 9).
The Board also has to be cognizant and demonstrate appropriate cultural sensitivity. In an IAD decision (Gill 2009 CanLII 82652 (CA IRB)), the Board stated,
..the parties to a[n] [arranged] marriage will have varying opinions about and differential awareness of the aspects of the other's life...[and] the "genuineness" of the relationship must be examined through the eyes of the parties themselves against the cultural background in which they have lived. [para 34]
and at paragraph 40
..."western harlequin romance ideals do not apply to everyone" and they should not be determinative of a genuine relationship..
The Board may at times make negative inferences based on its view or understanding of the parties cultural backdrop. This too must be undertaken with caution. Justice de Montigny, in Sandhu 2014 FC 1061 noted,
..It is not doubt true that a background investigation and the compatibility of the parties are generally considered the hallmarks of an arranged marriage. Yet cultural practices are fluid and not fixed in time...
Justice de Montigny also gives a nod to Justice Barnes presumption in Gill (above),
It may well be, as the Board implied, that the birth of a child does not definitely prove that a marriage is genuine. Each case will turn on its own facts, although there is much to be said for the presumption that "the parties to a fraudulent marriage are unlikely to risk the lifetime responsibilities associated with raising a child."
ultimately, he ends with a caution to the IAD,
Such a decision, however, must rest on a reasonable assessment of the evidence and cannot be the result of irrelevant factors, peripheral considerations or, even worse, prejudice and insensitivity to cultural differences.
Comments