Canadians have a right to marry (or enter into marriage-like relationships) whom they wish (subject to some basic, and common-sense, consanguinity, age, and species prohibitions). It's more straightforward when their partner is a Permanent Resident or Canadian Citizen. A Canadian, however, does not have an unfettered right to sponsor a partner that happens to be a foreign national to Canada. That decision requires the scrutiny of (sometimes overbearing immigration officers). If the sponsorship is refused, the Canadian sponsor has the right to appeal against the decision of the immigration officer to the Immigration Appeal Division.
Trying to determine whether a relationship is genuine is actually more difficult than it may, at first blush, appear (one confounding variable is that there are in fact non-genuine marriages in the mix).
It is true that there are many ways to skin a cat. The basic premise is the same: to separate the wheat from the chaff. However, far too often, a sponsorship appeal becomes a forensic exercise. Emotional relationships, the decision to marry do not lend themselves well to such artificial and ex post facto autopsies.
The Federal Court has cautioned that too much reliance should not be "placed on minutiae and marginalities..." but this happens all too often and regularly -particularly if the couple is not represented by experienced counsel.
[18] The Board’s treatment of the evidence in this case is an example of too much reliance being placed on minutiae and marginalities without enough attention being paid to the evidence bearing directly on the bona fides of the marital relationship. The Board essentially ignored much of the evidence supporting the genuineness of the relationship and instead made its credibility findings on the strength of doubtful or non-existent problems with peripheral detail. Concerns about whether Ms. Tamber had relationship difficulties with her sister, where she was living from time to time after Mr. Singh returned to India and whether she knew or should have known about the whereabouts of her first husband are not a particularly sound basis for completely rejecting their testimony and the documentary evidence. The Board had an obligation to consider the evidence bearing directly on the relationship...[Tamber 2008 FC 951 at paragraph 18]
Sometimes such appeals resemble TV game shows, like the Honeymoon Game.
Bloopers happen too. People get nervous (especially if they are not prepared for sometimes foolish -or unexpected questions).
But life is not a reality or game show. And the consequences for a failed appeal is catastrophic for a couple (or family).
Some IAD Board Members clearly get it. Discrepancies are natural in the accounts of two different individuals, and Minister's counsel all too often view their role to conduct a microscopic review and highlight what they view as problematic testimony:
[3] Minister’s Counsel has pointed to a number of discrepancies in the evidence... Many of the discrepancies noted by Minister’s Counsel fall under a category of what has elsewhere been described as involving a microscopic examination of the evidence. Thus, when Minister’s Counsel points out that the appellant and the applicant described their second meeting, in 2007, as having taken place a few days apart, the discrepancy is so minor that it may very well be due to a difference in memory or perspective quite apart from any credibility issues. Likewise, in a will that was provided to the visa officer to support the integration of financial affairs between the appellant and the applicant, Minister’s Counsel observes that the appellant, as executor, is referred to in the body of the document with a female pronoun. I do not see this as undermining the substance of the document but it more likely is a testament to the careless use of a precedent by the notary who prepared the document. Minister’s Counsel also suggests there is a significant discrepancy about the purchase of a house once the applicant comes to Canada, whereas the evidence in this regard is very largely consistent and supportive of a genuine marriage. This form of microscopic analysis places such a high burden of consistency on the evidence as to largely exclude evidence that is not tightly scripted. [emphasis added] [Tran 2010 CanLII 89140]
This review, from the outside looking in, is confounded by the fact that many years may have passed since the first meeting; the Board is also dealing with appellants and applicants from different cultures, different educational backgrounds, many relaying their testimony via interpreter (and the quality of interpretation varies) and most with little familiarity in formal settings.
The Board knows that there are serious consequences for a couple/family if a marriage is found not to be genuine or entered into for an improper purpose. The Board knows that these difficult decisions, confounded by the factors above, should not be based on a memory test. But that is exactly what these hearings have become:
[28] The applicant relies on Sheik v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15200 (FC), [2000] FCJ No 568, where Justice Lemieux held that many of the alleged inconsistencies in the applicant’s evidence were exaggerated, and that: “A refugee claim should not be determined on the basis of a memory test” (para 28). The applicant argues that there were no real or significant inconsistencies in the evidence. For example, the difference in the number of wedding guests was not so significant as to be a true inconsistency. Similarly, the variations in the number of guests at the sponsor’s 39th birthday party are not significant, and neither is the fact that they do not recall whether two or four of the children were present. These are just ordinary memory problems. The applicant also argues that there is no real contradiction in their answers about religion, or discussions on cultural differences. [Amayeanvbo 2011 FC 621]
Exactitude in testimony is an unattainable goal, and it is a threshold that is far too high. But it seems that is the threshold for many Minister's counsel (before they consent or change their position). Again, some Board Members get that:
Exactitude in the testimonies of the witnesses is not required, in my assessment, in order for an appellant to establish that the applicant does not fall within the rubric of the Bad Faith regulation. Discrepancies in testimony can be rooted in a myriad of factors, including cultural unfamiliarity, language difficulties, and the passage of time, amongst other legitimate reasons. This type of inconsistency, in my view, is outweighed by the detailed consistencies in other important areas, such as their recollections of more recent activities together. ... [Bhullar v. MCI at paragraph 33 http://canlii.ca/t/2b26j]
Remember, at an appeal, the onus is on the couple to show that their marriage is genuine and was not entered into simply to come to Canada.
Good luck!
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