Regulation 4(1) of the Immigration and Refugee Protection Regulations (“IRPR“) state that:
4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership
(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) is not genuine.
There has been developing jurisprudence on the disjunctive nature of IRPR r. 4(1), including a recent Federal Court certified question on whether IRPR 4(1)(a) is ultra vires the Immigration and Refugee Protection Act (“IRPA“), which provides that:
The objectives of this Act with respect to immigration are to see that families are reunited in Canada.
In Hunyh, Justice Manson succinctly answered the following three questions about IRPR r. 4(1):
1) Can either Citizenship and Immigration Canada (“CIC”) or the Immigration Appeal Division (“IAD”) make a finding that a foreign national shall not be considered a spouse if the primary purpose was to acquire any status or privilege under the IRPR r. 4(1)(a) without making a finding on the genuineness of the marriage?
Yes. The wording of IRPR r. 4(1)(a) is unambiguous; a finding of bad faith can involve either a finding that the marriage was entered into primarily for the purpose of immigration or that the marriage is not genuine. It is a disjunctive test.
Further, the Regulatory Impact Analysis Statement issued with the change to Section 4, is instructive and specifically states at pp. 1943 and 1944:
Under the previous provision, it was difficult to properly identify relationships of convenience…However, a “bad faith” relationship is present when either of these related factors [a relationship is not genuine, or it was entered into primarily for the purpose of acquiring any status or privilege under the Act] is apparent…
(1) Create a disjunctive relationship between the “genuineness” of the element and the “purpose” element of the bad faith assessment. This clarifies that a finding of bad faith can be made if either of these elements is present.
2) Did the IAD err by failing to apply the presumption of legitimacy and by failing to give any evidentiary weight to the existence of a child of the marriage?
The answer to this question was very fact specific, however, the Federal Court noted that as the applicant’s wife was not yet pregnant when she married the applicant, her subsequence pregnancy would not be determinative in determining what her primary motivation was in entering the marriage, and specifically noted that while evidence about matters that occurred subsequent to a marriage can be relevant to considering whether a marriage was entered into primarily for the proposed acquiring any status or privilege under IRPA, it is not determinative.
3) Did the IAD commit a legal error by considering the facts at the time of the visa office interview, rather than at the time of the appeal?
No. IRPR r. 4(1)(a) clearly specifies that the focus should be in the intentions of the parties when they entered into the marriage, in deciding whether the primary purpose is to acquire any status or privilege under the Act.
In Sandhu, a case which I successfully litigated, Justice Martineau provided further clarification regarding the interaction between genuineness and primary purpose, specifically in the context of res judicata.
1) Where there is a finding that a relationship is genuine.. does this influence the primary purpose analysis?
Yes. A finding that a marriage is genuine “weighs significantly in favour of a marriage that was not entered into for the purpose of gaining status in Canada. However, the finding that a marriage is genuine is not determinative.
… in contrast to the present tense focus of the first of the two tests set forth in section 4 of the Regulations, which requires an assessment of whether the impugned marriage “is not genuine,” the focus of the second of those tests requires an assessment of whether the marriage “was entered into primarily for the purpose of acquiring any status or privilege under the Act” (emphasis added). Accordingly, in assessing whether the latter test is satisfied, the focus must be upon the intentions of both parties to the marriage at the time of the marriage. I agree with the Respondent that testimony by those parties regarding what they were thinking at that time typically will be the most probative evidence regarding their primary purpose for entering into the marriage. (Gill, above, at para 33)
It is always difficult to assess primary purpose of a marriage because the decision to marry is intensely personal and private. In most instances the applicant is the one who stands to benefit by acquiring status or privilege under the Act and the task of the decision maker is often to determine what was going on in the applicant’s head, or arguably heart, at the time of the marriage. Genuineness of the marriage may often be assessed through many external manifestations and may be evidenced by the degree of interaction and consequent knowledge, demonstrated by the appellant and the applicant. In marriages where an appellant is introduced to an applicant by family members of the applicant, in Canada who understandably wish to have their close relative living near by, gaining admission to Canada is undoubtedly a strong consideration. Looking at these competing considerations, where there is a genuine marriage, such as I have determined here, there needs to be compelling evidence that the primary purpose was other than to be in a genuine marriage, to overcome the implication that, while gaining admission to Canada was a significant factor, entering into a genuine marriage was the primary consideration.
2) Can post-marriage interactions be relevant to determining primary purpose?
Yes. As Justice Martineau noted:
Evidence of commitment subsequent to the marriage can be used to prove the primary purpose of the marriage. This might include evidence of a continuing relationship or the birth of a child.
The Federal Court has certified the following question:
Is the disjunctive element of subsection 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (as amended SOR/2010-208) ultra vires the enabling statute (the Immigration and Refugee Protection Act, SC 2001, c 27) because subsection 4(1) would prohibit the sponsorship of a spouse when the marriage was found to be entered into primarily for the purpose of gaining status, notwithstanding a finding that the marriage always was or subsequently became genuine, and would therefore frustrate the aims and objectives of the Act, in particular section 3(1)(d), “to see that families are reunited in Canada”?
Here, the IAD focused on the applicant’s family’s intentions, rather than on the applicant’s intentions. The Federal Court stated:
In this case, it is clear that the IAD’s focus on the family’s intentions was motivated in large part by the cognitive impairment of both parties to the marriage. However, the IAD did not find that the parties were incapable of forming the intention to marry, and both spouses were also accepted as competent witnesses before the IAD.
Having found the marriage to be genuine, the IAD’s focus on the intentions of the couple’s families to determine that it was entered into primarily for immigration purposes was unreasonable. This Court’s analysis in Gill 2012 and Gill 2014 is dispositive. The application for judicial review must be allowed.