Immigration law change leaves some newcomers struggling to prove that their marriages are genuine

Some good data on overall numbers as well as the explaining the impact of the change made under the Conservative government requiring both conditions “nongenuine marriage “and” entered into for immigration purposes” to be met to only one condition, changing the “and” to “or:”

Deeparani Harishkumar Dhaliwal says she ends up emotionally and financially drained every time she travels to India to visit her husband and their young son.

Sometimes she stays for two months, other times for as long as six. But she ends up having to find a new job and a new apartment each time she returns alone to Canada.

Due to her frequent trips and moves, Dhaliwal, 37, has very few belongings. The Mississauga woman has been making these journeys for a decade, since she went back to India for an arranged marriage in 2011.

It’s not her preferred lifestyle, she says. But her spousal sponsorship to let her husband join her in Canada has been refused four times on the ground that it’s not a genuine marriage.

Her appeals to a tribunal have been denied, most recently in June, and so have her appeals of those appeal decisions.

“I cannot give up. I need a good future for my child. I need a good future for my family that they can’t have in India,” said Dhaliwal, who took their Canadian-born son Sehajveer to the care of her in-laws and husband in India, due to her lack of child-care options here, when he was two months old. She only recently brought him back to Canada at age eight.

Family reunification has long been considered an important reason to let spouses come to Canada. However, some newcomers such as Dhaliwal face years of bureaucracy, culturally loaded questions about marriage and a subjective evaluation process, with their families’ future at stake.

“Bringing a child into this world is not a small thing. This is not for immigration purposes.”

Between 2016 and 2021, there were 410,546 Canadians who applied to sponsor their foreign spouses for permanent residence, including spouses already in Canada and those still abroad. Over the same period, 368,332 were approved and 27,826 were refused, a refusal rate of seven per cent. (Delays in processing account for the mathematical discrepancy.)

The top grounds for refusals were: the relationship was deemed not genuine; the spouse was inadmissible for different reasons; or the couple failed to meet cohabitation requirements, produce required documents or answer questions truthfully.

As of mid-August, the federal immigration department still has 62,772 pending spousal sponsorship applications in process, including 2,487 cases where applicants have been refused before.

“The Government of Canada recognizes that the majority of relationships are genuine and that most applications are made in good faith,” says immigration department spokesperson Rémi Larivière. “To protect the integrity of our immigration system, officers must do their due diligence to determine whether a marriage is genuine.”

Couples are often interviewed to have their credibility assessed by immigration officials, and failed applicants can appeal to the Immigration and Refugee Board, where an independent adjudicator reviews the decisions. Between 2016 and 2021, the tribunal heard 7,702 spousal sponsorship appeals.

Included in those were Dhaliwal’s efforts to sponsor her husband, Amandeep Singh Dhaliwal, 33, to Canada.

In 2010, Dhaliwal came as a permanent resident with her then-husband but the two separated the following year, she told immigration officials, due to his alleged abusive behaviour. Shortly after the separation (they’re now divorced), she met her current husband and sponsored him in 2012.

The first sponsorship was refused because her divorce in India wasn’t recognized under Canadian law so the new marriage was considered invalid.

“A person must prove that their relationship is genuine and was not entered into primarily for the purpose of acquiring any status or privilege,” said Larivière.

“She reapplied three times after that. Each time, the officer was not satisfied that the marriage was not entered into for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act.”

Dhaliwal said she has been financially supporting her husband, who runs a small family farm. To pay for all the legal fees and trips, she said she has sold the gold necklace, bangle and earrings that her late mother bequeathed to her.

With her son by her side now, she is now studying to become a personal support worker while working as a security guard at Toronto’s Pearson airport. She still likes to hope that her husband could join them in Canada soon and they could buy a house and build a home here.

“We are standing by each other for a lifetime no matter what the conditions are, no matter what the (sponsorship) results are,” said Dhaliwal, who had a miscarriage earlier this year that she attributed to the stress from her legal battle.

“We have to stay in Canada because this is the only country where I can support my family and raise my child for a better future.”

The couple said it’s awfully hard to stay apart whenever Dhaliwal had to return to the cruel reality of being alone in Canada whenever she left India, where people make fun of them and taunt them about their marriage.

“Whenever we see relatives, people ask the same question. You guys have a kid together and it’s been so many years, and you still don’t have visa. It’s hard to answer people and explain to them our bond,” Amandeep Singh Dhaliwal, 33, said from India.

“In my life, my wife is God’s blessing. I am very hard working but due to limited opportunity in India, I couldn’t help her financially and most of burden of family is on her.”

While Dhaliwal made the mistake of not getting her divorce in India notarized before her first sponsorship, the second application, filed in 2014, was rejected due to doubts about the genuineness of the marriage.

The appeal tribunal concurred with the concerns raised by immigration officials, citing:

• The couple’s compatibility in terms of age, education, marital and religious backgrounds (She is Hindu, 37, divorced and university educated; he is Sikh, 34, a high-school dropout, and it’s his first marriage);
• The difficulty both spouses had in detailing their first conversation and the attraction they shared that led to their quick marriage a month after they met;
• Inconsistency in their evidence with regards to their wedding, honeymoon and intimacy; and
• Concerns that Dhaliwal’s first marriage was also a marriage of convenience.

Immigration consultant Sol Gombinsky, who is advising the couple, says spousal applicants are judged through the Canadian lens and that applicants are often stumped by the questions raised by immigration officers at interviews.

One question posed to the couple at their immigration interview was about their first sexual encounter after the marriage.

“It has always bothered me that they ask somebody abroad questions (from) thousands of miles away, with a different culture, different religion, and they ask questions that in many cultures are difficult to answer,” said Gombinsky, who worked 30 years with the immigration department, including a stint as an appeals officer.

“When something starts off bad and you get off on the wrong foot, it’s very difficult to correct it.”

In refusing the first appeal, the appeal tribunal said a variety of factors are taken into account in assessing if a relationship is genuine: the intent of the marriage; length of the relationship; amount of time spent together; conduct at the time of meeting, engagement and wedding; knowledge of each other’s relationship history; level of continuing contact and communication; financial support; sharing of child care responsibility; and knowledge about each other’s extended families and lives.

“The preponderance of the evidence support a finding that the marriage was entered into primarily for the applicant’s immigration to Canada, and is not genuine,” a tribunal concluded in 2016 in this case.

Seasoned immigration lawyer Lorne Waldman says what makes it hard to reverse a refusal in a case such as Dhaliwal’s is an amendment of the law by the former federal Conservative government.

The old regulation let officials refuse a spousal application if it was a nongenuine marriage “and” it was entered into for immigration purposes.

“But now you can refuse a sponsorship because it was entered into for immigration purposes or it’s not genuine,” explained Waldman, who represented Dhaliwal and her husband at their latest appeal this year.

“Since the change … if the case is refused at the beginning, then it’s really difficult to overcome, because that’s a finding that was made based upon what happened at the time they were married. Changes that occur afterwards don’t affect that part of the (initial) decision.”

As a result, many genuine couples have also been trapped if they fail to present their cases properly the first time, Waldman said.

Dhaliwal’s third and fourth sponsorship applications were refused in 2017 and 2021, on the same grounds. In the subsequent appeals, the appeal tribunal ruled that the same issue had been decided previously, and dismissed the requests.

Despite a DNA test result confirming the paternity of Dhaliwal’s child, the second appeal panel noted 22 specific problems with the couple’s evidence at the 2016 hearing and determined that none of the new evidence addressed those findings.

“While the new evidence might be relevant vis-à-vis whether the marriage is now genuine, it was not directly probative of whether the marriage had been entered into primarily for immigration purposes,” cited the latest appeal decision released in June.

In that decision, the tribunal recognized there’s a child of the marriage and the child continues to be jointly raised by the couple, which addressed some of the concerns previously raised.

“However, it is clearly not probative of them all,” said the tribunal.

Citing case law, the Immigration Appeal Division (IAD) tribunal said the existence of a child of the marriage will favour a finding of genuineness, but it is not proof in itself.

“In this appeal, it has already been held that, despite the existence of a child, the Appellant did not establish that this is a genuine marriage or that it was not entered into primarily for immigration purposes,” said the Immigration Appeal Division.

“If it is a fraudulent immigration marriage — and the Appellant has failed to establish otherwise before the IAD and visa officers — I cannot say that the child’s best interests favour holding another IAD hearing on the matter,” wrote adjudicator Benjamin R. Dolin in his June 23, 2022 decision.

While it’s not impossible to have a child in order to facilitate immigration through a spousal sponsorship, Waldman said he has never come across such a case in his more than four decades of legal practice.

“I’ve seen quite a few other cases like this. It’s really a tragic situation because families are being separated unnecessarily. Children are growing up with only one parent and people are not able to be with their spouses,” he said.

“For a lot of people, it’s not going to be possible to go back to their country. It’s not an option for a lot of people either because the financial situation in the country is extremely difficult.”

Source: Immigration law change leaves some newcomers struggling to prove that their marriages are genuine