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Cultural context must be considered when assessing the genuineness of a marriage, the IAD has ruled

Overturning an earlier decision of the Immigration Division, the Immigration Appeal Division (IAD) has held that cultural context should be considered when determining the validity of a marriage, accepting the arguments of counsel for the appellant, Green and Spiegel LLP partner Shoshana Green.

In this case, the appellant and her husband, who had a traditional arranged marriage, separated within a few months of the appellant’s arrival in Canada from India. The appellant had been sponsored by her husband at the time. Two years later, when the appellant herself tried to sponsor a spouse to come to Canada from India, an admissibility hearing was held which examined the breakdown of the appellant’s previous marriage. In that case, the Immigration Division found that the appellant’s previous marriage was not a genuine relationship, but was rather one that was likely entered into for the purpose of obtaining status in Canada. An exclusion order was issued against the appellant for misrepresentation.

In his decision at the Appeal Division, Board Member Benjamin Dolin emphasized the importance of considering background and cultural context in assessing testimony and credibility. In particular, the appellant and her ex-spouse had entered into the marriage through a traditional arrangement, and had therefore experienced significant family pressure to marry and sustain the relationship. While the appellant and her ex-spouse provided evidence that they both attempted to make the relationship work, prior to entering the marriage, the appellant’s ex-spouse had fallen in love with another individual whom his family did not allow him to marry. In light of the substantially consistent evidence, the Board Member found it plausible that the relationship between the appellant and her ex-spouse was genuine, but that after some time, the appellant’s ex-spouse realized the relationship could not work and decided to end the relationship.
The Board Member made the following significant findings:
  • In addressing whether the appellant’s statements relating to her marriage should be believed or found implausible, the Board Member made reference to case law stating that a finding of implausibility should be made in only the clearest of cases. The Board Member stated: “To find that the appellant has been untruthful under oath, I must be able to say that there were substantive inconsistencies in her evidence or that things simply could not have occurred in the manner described.” The Board Member also referred to the Federal Court case of Valtchev v. Canada (Minister of Citizenship and Immigration), which held that credibility findings on implausibility should only be made if the facts are outside the realm of what could reasonably be expected, or where documentary evidence demonstrate that events could not have happened in the manner presented by the claimant.
  • The Board Member stated that a decision maker should look to cultural practices to explain the relationship and conduct of individuals relating to a marriage or marriage breakdown. In assessing testimony, decision-makers should take into consideration the cultural context of the individuals testifying, their age, background and previous social experience. Further, “it is improper to analyze conduct based on a wholly Canadian or ‘Western’ perspective.”
  • In relation to the appellant’s ex-husband’s evidence, provided in the form of an affidavit, the Board Member found that the Immigration Division had erred by entirely discounting the affidavit because he did not present himself for cross-examination. The Board Member declared that Minister’s Counsel did not ask for the individual to be cross-examined when they could have. Further, the IAD has the ability to compel a witness.
  • There must be solid grounds to reject or refuse evidence under oath, particularly in connection with sworn testimony and plausibility findings.

Bhaniwal v. Canada (The Minister of Public Safety and Emergency Preparedness)

Immigration Appeal Division

For additional information, please contact Green and Spiegel LLP.