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Immigration Board Must Consider Culture and Personal Circumstances When Assessing Genuineness of Marriage, Immigration Appeal Division Confirms

In a recent important case successfully argued by Green and Spiegel LLP partner Shoshana Green, the Immigration Appeal Division (IAD) confirmed that, in determining whether the marriage between a sponsor and sponsored spouse is genuine or merely one of “convenience”, the Board must begin with the assumption that sworn testimony is truthful, must take into account the culture and personal circumstances of the spouses and cannot reject their testimony as implausible merely because they have an interest in the outcome of the hearing.

The appellant in this case married her spouse in a traditional Sikh arranged marriage. She was then sponsored to Canada by her new husband but, within a month of being landed, she separated from him when she discovered he was romantically involved with someone else. The appellant remained in Canada, initially hoping to reconcile. Her husband, however, filed for, and was granted, a divorce. The appellant later married an Indian national and initiated a sponsorship application for him.

The appellant was referred to an admissibility hearing before a Member of the Immigration Division (ID) of the Immigration and Refugee Board. In determining that the appellant’s first marriage was a “bad faith” marriage entered into to obtain status in Canada, the Member rejected the appellant’s evidence as untrustworthy on the basis of “her interest in the outcome of the admissibility hearing” and the fact that she lived with her husband only briefly. The Member was also concerned about the appellant’s “lack of concerted effort” to reconcile and that she had found employment and stayed in Canada rather than returning to India after the marriage failed.

In allowing the appeal and setting aside the Minister’s removal order, the IAD held that the Member had erred, firstly, in applying a “presumption of untruthfulness”, rather than a presumption of truthfulness, to the sworn testimony of the appellant on the basis that she would face significant repercussions should she be removed to India; and, secondly, in drawing the unreasonable inference from the short period of cohabitation that the appellant’s evidence in support of her sponsorship application must have been “tailored”.

Further, the IAD held that the Member erred in failing to consider the appellant’s personal circumstances when assessing the plausibility of her testimony – in particular her stated reasons for deciding to stay in Canada – including the evidence that she was a young, traditional Sikh woman from rural India who had relied upon her parents to make all arrangements for her marriage; that she had never traveled abroad before coming to Canada where she had no family except for her new husband; and that she had remained in Canada at the insistence of her parents, who were hopeful the couple would reconcile.

Finding no significant discrepancies or contradictions that would undermine the presumptive truthfulness of the appellant’s sworn testimony, the IAD held that the Minister had failed to establish that the appellant’s marriage was not genuine.

For further information on the IAD’s ruling in this case (Dhaliwal v. The Minister of Public Safety and Emergency Preparedness, IAD, July 10, 2012) or on the requirements and process in applying for permanent residence as a member of the family class, please contact the immigration law specialists at Green and Spiegel LLP.