Last updated on April 4th, 2021
Last Updated on April 4, 2021 by Steven Meurrens
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.
The primary purpose test and the genuineness test are determined with respect to different time-frames. As the Federal Court noted in Idrizi v. Canada (Citizenship and Immigration), 2019 FC 1187 The relevant time for the primary purpose test is in the past (i.e. the time of the marriage); the relevant time for the genuineness test is the present (i.e. the time of the decision). Evidence that a marriage is not genuine can support the inference that it was entered into primarily for an immigration purpose. The converse is also true. these determinations can be exceedingly difficult. Officers must “proceed cautiously and carefully, ever aware of the need to facilitate family reunification, while at the same time safeguarding the integrity of the immigration process” (at 1944). There will rarely be direct evidence of an improper purpose. Instead, normally “intent must be inferred from the conduct of the parties and the particular circumstances of the case” (ibid). As a result, even though it is no longer sufficient for spouses simply to establish that they are in a genuine marriage (because the decision-maker can disqualify the marriage solely because it was entered into primarily for an immigration purpose), evidence concerning the genuineness of the marriage can still have a bearing on whether an adverse conclusion about the parties’ intentions when they got married should be drawn
There are several other principles about assessing whether a marriage is that are important to understand.
1) Can either Immigration, Refugees and Citizenship Canada (“IRCC”) or the Immigration Appeal Division (“IAD”) make a finding that a foreign national shall not be considered a spouse for immigration purposes because the primary purpose of the relationship was to acquire an immigration benefit without making a finding on the genuineness of the marriage?
As the Federal Court of Canada noted in Huynh v. Canada (Citizenship and Immigration), 2013 FC 748, the answer is 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.
As per the Regulatory Impact Assessment Statement that accompanied the introduction of the disjunctive test:
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) Does the existence of a child lead to a presumption of genuineness and a legitimate primary purpose?
The answer to this question is very fact specific, however, the Federal Court has held that generally the existence of a child will lead to a presumption that a marriage is genuine and that it’s primary purpose was not for an immigration benefit. As the Federal Court of Canada noted in Gill v. Canada, 2010 FC 122, this is “because the consequences of a mistake will be catastrophic to the family.”
However, the presumption can be rebutted. For example, while evidence about matters that occurred subsequent to a marriage, such as a pregnancy, 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.
On this note, in Fung v. Canada (Citizenship and Immigration), Madam Justice Elliot stated the following in obiter:
Although not relied upon by the IAD with respect to the significance of the birth of the child, I would be remiss if I did not comment upon whether the presumption set out in Gill should apply on these facts.
The Applicant submits that as was said in Gill, the consequences to the family of making a mistake in assessing the genuineness of a marriage will be catastrophic. As a result, it would not be unreasonable to apply an evidentiary presumption in favour of the genuineness of a marriage because parties to a fraudulent marriage would be unlikely to risk the lifetime responsibilities associated with raising a child.
Both the IAD and the Respondent accepted that the Applicant is the father of the daughter. The Respondent urged, and the IAD found, that the credibility concerns were sufficient to overcome the presumption.
The presumption is based on the birth of a child to an existing family relationship. The presumption is an evidentiary means to establish the genuineness of that relationship. Here, the child was born as a result of one sexual encounter between the parties. There was no family, no marriage and no relationship between them at that time.
The parties did not have any kind of relationship, marital or otherwise, with each other during the entire twelve year period from March, 1997 to February, 2009. The Applicant was in Canada, married to and living with his first wife. From March, 1998 to September, 2006, his current wife was married to and, together with her child, living in China with another man.
Absent some extraordinary circumstance such as incarceration, to claim the benefit of the presumption that having a child together is proof of a genuine marriage requires the existence of a family relationship. This relationship should be in place at the time the child is born or within a reasonable period of time thereafter. What is reasonable would depend on the circumstances.
Can the presumption arise in effect, retroactively, after more than a decade has passed during which the father had no contact with the mother and no knowledge at all of the existence of the child? While I question whether on the facts of this case the presumption can or should apply, I need not make that determination. I flag it merely for future consideration if applicable.
3) What is the time frame of assessing primary purpose? Is it at the time of marriage, application or IAD appeal?
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.
4) 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, although it is not determinative.
In Sandhu v. Canada (Citizenship and Immigration), 2014 FC 834, 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.
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.
5) Can post-marriage interactions be relevant to determining primary purpose?
Yes. As Justice Martineau noted in Sandhu:
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.
6) What if the family members are motivated by immigration, but the actual couple getting married aren’t.
What matters are the applicant’s intentions. As per the Federal Court of Canada decision in Mahabir v. Canada (Citizenship and Immigration), 2015 FC 546: :
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.