Summary: A visa officer outside Canada determines the genuineness of a marriage or common-law relationship for immigration purposes. If the family class sponsorship is refused, the sponsor has the right to a substantive review or appeal at the Immigration Appeal Division within 30 days of receiving the refusal. The appeal can be resolved through Alternative Dispute Resolution (ADR) or a full hearing if ADR is unsuitable. The full hearing is held in Calgary or Edmonton, typically for a full day, with the Board Member, Minister's counsel, the appellant (sponsor), and counsel in attendance. The hearing begins with an introduction by the Board Member and questions and cross-examination by both counsels. The appellant and applicant need to present evidence to establish the genuineness of their relationship and the Board will consider factors such as knowledge of each other, contact with family, financial support, and the couple's intent. The outcome of the hearing can be affected by the particular Board Member and the CBSA hearing officer, so it's recommended that the couple seek assistance from an experienced immigration lawyer to prepare for the hearing.
A visa officer (for a sponsorship submitted outside Canada) is tasked with determining whether a marriage or common-law relationship is genuine or entered into primary for the purpose of an immigration purpose.
If a visa officer refuses a family class sponsorship (marriage, or common-law) outside Canada on the basis of s.4 of the IRPR, the sponsor (generally) has a right to a substantive review or appeal at the Immigration Appeal Division. The appeal has to be filed within 30 days of the sponsor receiving the refusal from the visa office. It is possible that the matter can be resolved by way of an ADR (the Alternative Dispute Resolution) proceeding. I have written about that process; today, I will try and provide further details when an ADR is deemed unsuitable or the ADR is not accepted. In that event, the matter goes to a full hearing (again, generally speaking –there may be marriage appeals that may not merit a full review, such as appeals involving res judicata).
These hearings, for sponsors living in Alberta are heard in Calgary and Edmonton. In Calgary, the hearings are held at the Harry Hays Building. The hearings are typically scheduled for a full day hearing; it is possible that it could be heard with the Board Member via video-conference but there are three full time Board Members in Calgary.
Present at the hearing will be the Board Member, the Minister’s counsel, the appellant (sponsor), and counsel. An interpreter is frequently required/requested.
At the beginning of the proceeding, the Board Member will introduce herself/himself. He or she will give an overview as to what will happen, that is the appellant and applicant will be questioned in turn by their counsel, followed by cross-examination by Minister’s counsel. The Board Member will confirm the documents that will be relied upon for the appeal. There is the appeal record (prepared by CBSA and forwarded to the Board, appellant and counsel about 120 days after the appellant files the Notice of Appeal). There should be disclosure from the appellant –documents that go to establishing the genuineness of the relationship or documents that could help address the concerns of the visa officer. These documents need to be provided in accordance with the IAD Rules. There may be late disclosure and there is a process by which the IAD Member can accept same.
It is important that the appellant and applicant review their application and the notes from the visa office interview (both are contained within the Appeal Record). This is a substantive appeal but the concerns of the visa officer will stay play a role.
The appellant will then be asked to stand, raise their right hand and affirm to tell the truth.
If there is an interpreter, it is important to stop or pause in giving a long answer so that the interpreter can do his/her job and interpret fully without losing part of the signal so to speak.
The appellant/applicant should not guess or make up answers. This causes obvious issues. Credibility is always at issue and it is important to preserve the presumption of truthfulness that arises from sworn testimony.
It is important to understand the factors that the Board generally looks to to determine whether s.4 applies (if it applies, the appeal is dismissed). Generally speaking a couple can prove that they are in a genuine relationship by: demonstrating knowledge of each other; knowledge (and contact with) respective family members; a clear, cogent, consistent narrative as to the origin and development of the relationship and the decision making behind entering matrimony/the relationship. They will also need to establish their contact/communication/compatibility. Questions will also arise as to financial support/intermingling of financial affairs, future plans. Children born into or brought into the marriage/relationship will obviously be an area that will be of great relevance to a determination as to whether the marriage is genuine.
Exactitude in testimony is an impossibility. However, disparity in key areas or events can give rise to an inference or doubt as to the bona fides of the relationship. The same goes for a lack of knowledge about one’s spouse/partner. This extends to knowledge of your partner’s life before the relationship began and his or her extended family members. A lack of knowledge could lead to the inference that there is a lack of interest that one would expect of a marital/common-law partner. There are of course innocent explanations for disparity or lack of knowledge. The marriage appeal should not be a memory test for example, nor should the Board ignore cultural differences that may not accord with Western concepts of marriage or marriage like relationships.
The Board will also look at the applicant’s intent. Are there push/pull factors –has the applicant tried to come to Canada/leave his or her country in the past is there family or other compelling need to come here apart from the relationship itself.
There are factors outside of the appellant/applicant's control. These include the identity of the particular Board Member and the particular CBSA hearings and appeals officer. Some Members/officers are more facilitative or understanding of the fragility of the human condition than others. Some officers dwell on microscopic, picayune issues or apparent discrepancies. Some hearings officers are combative, others have a far more laid back approach. Both approaches can be effective, but the former tends to be a little jarring for the appellant/applicant.
As a result, it is imperative that the couple spend significant time in preparation for this very important proceeding. The IAD is essentially a Court and given that it is an adversarial proceeding, I would strongly suggest that an experienced immigration lawyer is retained. The consequences of a refused appeal are catastrophic for a real couple/family.