I've been reading “Points of Entry: How Canada's Immigration Officers Decide Who Gets In” by Vic Satzewich. The author managed to - after obtaining with some difficulty the necessary bureaucratic blessings - interview over a hundred visa and case officers, and attend and examine the inner workings of a number of overseas visa offices. Reading the book confirmed many of my own experiences both as a former immigration officer and now for more than a decade, an immigration lawyer charged with facilitating my client's interactions with Immigration, Refugees, and Citizenship Canada - formerly known as Citizenship and Immigration Canada.
In this blog post I'm going to concentrate on Satzewich’s findings regarding the spousal sponsorship process and how they dovetail with my experiences and that of the other lawyers at my office. The author cites an unnamed visa officer who essentially states that determining whether a spousal sponsorship is genuine or not is not rocket science in the sense that his or her task is harder; there is no formula, algorithm and no two cases are the same. While Satzewich based his writings on his field research, my experience in unravelling how visa officers think and make decisions in a more forensic way. Appealing overseas visa officer decisions is a significant part of my practice. At last count, I have over 70 reported decisions at the Immigration Appeal Division; many of the appeals hearings I attend do not result in reported decisions as the attending Minister's counsel can and do consent or can make a joint recommendation at the conclusion of some of those hearings, or the matter is resolved by way of an Alternative Dispute Resolution proceeding (or ADR).
In my opinion, there are a number of reasons why determining the "genuineness" of a spousal, common-law or conjugal relationship . For one there's an incentive for many to engage in fraud; entering into a marriage of convenience allows a fast track entry to a first world country without the hassles of qualifying for an economic class (and establishing post secondary, post graduate education, language proficiency, and skilled work experience).
Differentiating a carefully constructed marriage of convenience from a genuine marriage is intrinsically difficult. Officers and immigration “agents” and individuals that are trying to game the system simply to come into Canada are caught in an endless cat and mouse game. Techniques for fraud detection and implementing same must necessarily evolve, much like predator and prey. My own community is guilty of turning what was intended to be a sacred commitment to a business transaction; fake grooms and brides circling a holy fire or a holy text; or deception, taking advantage of a trusting individual; we've made a mockery of our beliefs all for a visa. I discussed marriage fraud on Alberta Primetime; the video can be found here, on our Youtube channel.
Compounding efforts to (accurately) detecting fraud are processing targets. Officers have finite time to determine whether a marriage is genuine or not, or whether it was entered into primarily for the purposes of immigration. They will examine the documentation proffered by the applicant and sponsor, and if it is in accordance with the officer's own subjective views of what constitutes a genuine relationship (perhaps informed by their own life experiences and cultural background), and matches what the officer feels is the cultural nuance from which the applicant/sponsor come from, then an interview can be waived (saving time) and the permanent residence visa can be issued.
Given the constraints of time and other computing requirements, officers rely on "flags", stereotypes, generalizations and essentially engage in profiling, although this latter term is discouraged given the connotations in a multicultural environment. They also decide whether or not to "dig deeper" (Satzewich's term) based on their understanding of the socio-economic pressures (the poorer the country, the more likely that an officer will draw a negative inference or presumptions as to intentions and motives).
What are some of these red flags? These indicators that officers rely upon include an age gap; a marriage between a divorced individual and a never married individual; a marriage between someone that does not have children with someone that does have children; a inter-caste marriage; an interfaith marriage; a disparity in the educational achievements of the parties; and parents not attending in marriage (particularly a concern apparently for officers in Delhi, which refuses the most number of applicants under the spousal sponsorship class); previous attempts to come to Canada; family in Canada. There are more.
In making decisions immigration officers apply inherently discretionary thresholds. This is the "balance of probabilities" test which essentially means that one outcome is more likely than the other. But one officer's 51% or 52% or 53% is another officer's 47, 48 or 49.5%. When will an officer give an applicant/sponsor the benefit of the doubt and when will that benefit be held back?
Officers also tend to rely extensively on, especially if an interview is convoked, on subjective indicators of credibility. This means that officers - relying on ad hoc experience and advice by others - make important decisions on body language (“applicant shifts nervously in chair”) and demeanor. These non scientific observations are hampered by the fact that officers are not formally trained in this field (I'm not sure whether that's even possible), the interview may be held through the assistance of interpretation (there are good interpreters and incompetent ones), there are of course cultural barriers and nervousness often masquerades as duplicity or mendacity. Some officers as more "facilitative" vs. "enforcement minded". They seem to have different interview styles; some are off-putting, aggressive. I've discussed the spousal sponsorship interview in a video found on our Youtube channel.
All of these conspire against someone that simply wants to bring their husband, wife, partner to start a life together in this country. Other exacerbating or confounding variables or factors include well-meaning but ultimately foolish advice by immigration lawyers and consultants that coach their clients to present a false face to their application, one more in line with what the immigration lawyer, consultant or ghost consultant "thinks" a visa officer wants to see or what these individuals believe constitutes a "perfect" application.
Generalizations, stereotypes are sometimes valid. If they were not at times useful, then they would not be used as a heuristic . Some of these stereotypes or generalizations however are of particular concern to particular ethnicities or cultures. For example it is well known that these officers in India believe that marriages of convenience are more common or more likely from the Punjab or Gujarat and not so likely from South India. That means a Punjabi has a higher threshold to beat, a conscious or unconscious bias to overcome even before his or her application is considered on the merits. That stereotype has valid underpinnings.
I have reviewed hundreds of appeal records prepared after the refusal and after the sponsor files an appeal of a refused application to the Immigration and Appeal Board. The appeal record contains the visa officer's notes. There is no question in my mind that the notes do not contain all of the thoughts or concerns of the officer; knowing what we know of human cognition, we rationalize more, reason less. How much confirmation bias is at play?
In my opinion, officers place far too much importance on cultural practices. Officers that are likely born and raised in Canada will based on my review of hundreds of visa officer notes continually tell someone from a particular country: "In your country, culture, society you do things this way, and not the way you've done." No two Hindus likely “practise” Hinduism the same; there are different practices even within the same village, family.
The author confirmed my suspicion that visa officers tend to rely on local staff for their understanding of the culture that they've suddenly been thrust into for a couple of years. While visa officers or officers that are Canadian make PR applications, local staff often triage, make decisions on a temporary resident visa applications - and provide their own generalizations and stereotypes on PR applications. They in effect train Canadian staff but none of that training is contained in policy material, or tested. This is perhaps a necessary evil but it is my opinion and mine alone that (local staff that are) Indians have a high propensity to rely on stereotypes and generalizations particularly against other Indians. India is the first multicultural country, and non-brown individuals may be surprised to hear of our stereotypes of other Indians based on caste (yes even by Browns born in Canada), region (the tiny Punjab has 3 dialects, & distinctions are made on how you pronounce 'salt’; Punjabis are laborers, South Indians are smart, Gujaratis are businessmen), appearance (North vs South), religion… This is the filtered advice coloring a Visa Officers decision to convoke an interview (already a bad sign) and even before the officer meets a perspiring, nervous applicant relying on nostrums of an immigration agent or family and friends.
I must confess that I've engaged in many of the same sins, thinking and practices.
For years the Canadian High Commission in Delhi relied on the affidavit of a local staff-a template, standard form affidavit regarding North Indian culture norms and views on divorce and marrying divorcee. It is trite to say that culture values and cultures are not fixed in time-generalizations and stereotypes are dangerous and in my opinion officers are far too cavalier in refusing spousal sponsorships.
That being said, often valid concerns arise where there is deviation from valid cultural touchstones. For example, the name of the Sikh wedding ceremony has the word or Punjabi term for bliss, joy (the first word in fact, Anand Karaj) and officers will inevitably will raise their eyebrows if there is a lack of gaiety among the participants. They expect some solemnity during the ceremony it is true, but they also are going to be expecting a happy occasion and one that is reflected in the participant's demeanor such that can be gleaned or whatsoever can be gleaned from photographs submitted with the application.
I think visa officers (and Satzewich seems to confirm this) are too cavalier with refusing spousal sponsorships knowing that there is an appeal mechanism. That appeal mechanism however takes years and takes a toll, financially and emotionally on the couple. I believe that more should be done to combat false negatives. In my opinion this means additional training (including interviewing skills), less reliance on ad hoc advice from local staff, understanding the conscious and more importantly unconscious bias we all bring to the ‘reasoning’ process. Perhaps overseas visa officers should start by reading Satzewich's fine text. Maybe there should be regular teleconference or videoconferencing between visa officers making decisions on spousal sponsorship files and CBSA Hearings and Appeals Officers; finally, are overseas visa officers regularly briefed on jurisprudence from the IAD and the Federal Court?
Sometimes it seems has an opinion as to what should be in a spousal sponsorship application. Without my asking my clients provide me with proof of financial support. They may be surprised to learn that officers do not put much stock in western union or other proof of financial support. They mean invariably include proof of telephone contact and they should be cognizant that officers will scrutinize those telephone records in terms of timing and duration of call. They should know that officers will scrutinize the content of emails, chat messages. Many documents can be dismissed out of hand as the enforcement minded officers will assume that fabrication is possible. Local staff and visa officers continue to place great importance on the photographs submitted with the application. Officers place great stock in rituals and transitions. They may have a point. If you are going to India to get an arranged marriage it means tradition is important to you. Absence of same will give rise to a negative inference. Ignore them at your peril even if you don't believe in them!
No two cases are the same that means there is no one-size solution in presenting your application in the best possible light-to maximize your chances of success at the first instance. I firmly believe that our extensive experience and success in challenging visa officer refusals allows us the insight to provide that assurance to our clients.