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

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

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

Due to his frequent travel and moving around, Dhaliwal, 37, has very few belongings. The Mississauga woman has been making these trips for a decade, ever since she returned to India for an arranged marriage in 2011.

It’s not his preferred lifestyle, he says. But her spousal sponsorship to allow her husband to join her in Canada has been rejected four times on the grounds that it is not a genuine marriage.

His appeals to a court have been denied, most recently in June, as have his appeals of those appeal decisions.

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

Family reunification has long been considered an important reason for allowing spouses to come to Canada. Yet some newcomers, like Dhaliwal, face years of bureaucracy, culturally charged questions about marriage, and a process of subjective evaluation, with the future of their families at stake.

“Bringing a child into this world is no 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. During the same period, 368,332 were approved and 27,826 rejected, a seven percent rejection rate. (Processing delays explain the mathematical discrepancy.)

The main reasons for refusal were: the relationship was considered not genuine; the spouse was inadmissible for different reasons; or the couple did not comply with the cohabitation requirements, presented the required documents or answered the questions truthfully.

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

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

Couples are often interviewed for credibility assessment by immigration officials, and rejected applicants can appeal to the Immigration and Refugee Board, where an independent judge reviews decisions. Between 2016 and 2021, the court heard 7,702 spousal support appeals.

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

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

The first sponsorship was rejected because their divorce in India was not recognized under Canadian law, thus the new marriage was deemed invalid.

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

“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 some 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 of her legal expenses and travel, she said she sold the gold necklace, bracelet and earrings bequeathed to her by her late mother.

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 can join them in Canada soon and that they can buy a house and build a house here.

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

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

The couple said it is terribly difficult to stay apart every time Dhaliwal has to return to the cruel reality of being alone in Canada every time she leaves India, where people make fun of them and make fun of them for their marriage.

“Every time we see relatives, people ask the same question. You have a child together and it’s been so many years, and you still don’t have a visa. It is difficult to respond to people and explain our bond to them,” said Amandeep Singh Dhaliwal, 33, from India.

“In my life, my wife is God’s blessing. I work very hard, but due to her limited opportunities in India, I was not able to help her financially and most of the burden of her family falls on her.”

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

The appellate court agreed with the concerns raised by immigration officials, citing:

Immigration consultant Sol Gombinsky, who is advising the couple, says marriage applicants are judged through a Canadian lens and applicants are often stumped by the questions asked by immigration officers in interviews.

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

“It has always bothered me that they ask questions of someone abroad (from) thousands of kilometers away, with a different culture, a 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 wrong and you start off on the wrong foot, it is very difficult to correct it.”

In rejecting the first appeal, the appellate court said a variety of factors are taken into account in assessing whether a relationship is genuine: the intention of the marriage; length of relationship; amount of time they spend together; conduct at the time of meeting, engagement and wedding; knowledge of each other’s relationship history; level of continuous contact and communication; financial support; share responsibility for child care; and knowledge about extended families and the lives of others.

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

Experienced immigration lawyer Lorne Waldman says what makes it difficult to reverse a denial in a case like Dhaliwal’s is an amendment to the law by the previous conservative federal government.

The old regulation allowed officials to reject a marriage application if it was a non-genuine marriage “and” it was entered into for immigration purposes.

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

“Since the change… if the case is rejected at first, then it’s really hard to get over, because that’s a finding that was made based on what happened at the time they got married. Changes that occur later do not affect that part of the (initial) decision.”

As a result, many genuine couples have also been trapped if they don’t get their cases right the first time, Waldman said.

Dhaliwal’s third and fourth sponsorship requests were rejected in 2017 and 2021 on the same grounds. On subsequent appeals, the appellate court ruled that the same issue had been previously decided and dismissed the applications.

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

“While the new evidence might be relevant as to whether the marriage is now genuine, it was not direct evidence as to whether the marriage had been entered into primarily for immigration purposes,” the latest appeal decision published in June cited.

In that decision, the court recognized that there is a child of the couple and that the child continues to be jointly raised by the couple, which addressed some of the concerns raised above.

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

Citing case law, the Immigration Appeals Division (IAD) court said that the existence of a child of the marriage will aid a determination of authenticity, but is not proof in itself.

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

“If it is a fraudulent immigration marriage, and the appellant has not been able to establish otherwise before the IAD and visa officers, I cannot say that it is in the best interests of the child to hold another IAD hearing on the matter. ”, wrote the adjudicator Benjamin R. Dolin in his Decision of June 23, 2022.

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

“I have seen quite a few other cases like this. It is 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,” she said.

“For many people, it will not be possible to return to their country. It is also not an option for many people because the country’s financial situation is extremely difficult.

Nicholas Keung is a Toronto reporter who covers immigration for the Star. Follow him on Twitter: @nkeung

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