#9068 - Family Class Sponsorships - Immigration and Refugee Law

s. 3(1)(d) IRPA: family reunification is one of the objectives of the statute

• economic and refugee classes can bring family members with them (these people fall under Reg 70(4) and 72(4))

WHO CAN BE SPONSORED?

1. Spouses, common law, conjugal partnerships

2. Dependent children (adopted or to be adopted under the age of 18)

3. Parents (on hold) – super visa option

4. Other prescribed family members: where you have no other family members (s. 117(1)(h))

5. Not siblings

*Sponsored family members are not required to meet selection criteria of any other class. Spouse, common law partner and child not rendered inadmissible for a medical condition that may place a burden on CDA’s health care system.

SPONSORSHIP MATRIX

QUALIFICATIONS OF SPONSORSHIP

PROCEDURE

• Can appeal to IAD if member of family class (de novo – can adduce new evidence). If dismissed at IAD, a subsequent application will be dismissed on issue estoppel or res judicata (ex. if marriage not bona fide). If so:

  • Same question must have been decided in earlier proceedings

  • Judicial decision said to create estoppel final

  • Parties to judicial decision were the same persons as the parties to the proceedings in which estoppel was raised

• First step for officer is issue estoppel, and then consideration for res judicata follows

• If a subsequent application is made, fresh evidence going to birth of a child or length of cohabitation may assist, but photos, and plane trips generally do not

• Precluded from H&C if inadmissible on some grounds

• Decision can be reviewed by FC

• DEPENDENTS/FAMILY = s. 42 (IRPA) makes family member inadmissible if FN applicant inadmissible.

CLASS 1: SPOUSES, COMMON LAW, CONJUGAL

• No right to live in CDA – can be sponsored (overseas or inland)

  • Inland: FN spouses or common law partners of CDNS or PRs living in CDA can be sponsored (as long as they are not subject to removal order)

  • Inside: 19 months, Outside: 19-23 months

  • If you do not have status or you lose your status, you can be removed at any time until you get stage 1 processing, after which you cannot be removed

• Spouse is interpreted as a marriage that is valid under CDN law

• Require a visa before entry

• Ability to prove that you’re in a relationship decreases as you go down from spouse to the conjugal partnership status

SPOUSAL TEST

1. Is the marriage valid under the laws of the jurisdiction of the country in which they were married?

   1. Essential validity: legal capacity to marry (prior existing marriages, prohibited degrees of consanguinity, non consummation, consent)

   2. Formal validity: technical aspects of ceremony – determined in accordance with laws of jurisdiction where it took place

   3. No need for religious fulfillment

2. Is the marriage valid under Canadian law?

3. If not legally married, does the relationship meet the requirements of a common law or conjugal partnership?

COMMON LAW TEST

1. cohabitation for 1 + years

2. conjugal relationship

CONJUGAL PARTNERSHIP TEST (M v H factors)

1. shelter – cohabitation

2. sexual and personal behaviour (exclusive, committed)

3. services – shared responsibilities

4. social activities – share time together, interaction with family

5. economic support

6. children – shared attitudes towards children

7. social perception (community/family)

*MUST meet marriage-like relationship. Difficult to prove and not all factors determinative.

Sanichara v Canada 2005 FC 1015 (GENUINE MARRIAGE)

F: Canadian citizen of Indian descent married a 22 year old Indian woman. IAD dismissed appeal of officer’s decision. Officer considered that they didn’t meet prior to marriage, he barely spoke Punjabi and she barely spoke Eng, arranged wedding, no family members present at wedding, applicant not present at ceremony, contact minimal, he has not returned to India and even though his mother is disabled, he moved out and others are able to look after her.

I: Did the IAD apply the proper test in determining whether applicant’s wife fell under the family class?

D: application dismissed; yes

Ratio: Applicant conducting spousal sponsorship has duty on BOP to establish that marriage was not conducted solely for immigration purposes. If reviewed, applicant has onus of establishing that IAD committed reviewable error.

Reasons: TEST for spousal sponsorship: S. 4 of the regulations require establishing that 1) marriage is genuine and 2) marriage was entered into primarily for the purpose of acquiring any status of privilege under the act (Horbas v Canada 1985 FC). Contradictions on file considered by the officer were properly assessed by the IAD.

Salh v...