 
IAD.34 ( March 13, 2014 ) 
Disponible en français  
  
Immigration and  
Refugee Board of Canada  
 
Immigration  Appeal Division  
  
Commission de l’immigration  
et du statut de réfugié du Canada  
 
Section d’appel d e l’immigration  
 
 
IAD File No. / No de dossier  de la SAI : TB3 -03653  
 
Client ID No. / No ID client : 5309 -8456  
 
Reasons and Decision  Motifs et décision  
 
SPONSORSHIP  
 
 
Appellant(s)  XXXXXXXXXXXXX DHALIWAL  Appelant(e)(s)  
   
and   et 
   
Respondent  The Minister of Citizenship and Immigration  Intimé (e) 
   
   
Date(s) of Hearing  September 23, 2015  Date(s) de l’audience  
   
   
Place of Hearing  Toronto, Ontario  
 Lieu de l’audience  
   
   
Date of Decision  October 13, 2015  Date de la décision  
   
   
Panel  XXXXXXXXXX  Tribunal  
   
   
Counsel for the  
Appellant(s)  XXXXXXXXXXXXXXXXXX  Conseil(s) de 
l’appelant (e) / des 
appelant(e)(s)  
   
   
Designated 
Representative (s) N/A  Représentant(e)(s) 
désigné(e)(s ) 
 
   
Counsel for the Minister  M. Stam  Conseil du ministre  
   
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REASONS FOR DECISION  
 
[1] The appellant,  PrXXXXXXXXXXXXXXXXXXXX, appeals pursuant to section 63(1) of the 
Immigration and Refugee Protection  Act1 (IRPA ) from a decision of the immigration officer not 
to issue a permanent resident visa to her applicant husband (“applicant”), SuXXXXXXXXXXXXXXXXXXXX , on the basis that the marriage is not genuine and was entered into primarily for the 
purpose of acquiring any status or privilege under the IRPA.  
 
[2] The issue is whether the appellant has proven that the applicant is to be considered her 
spouse, and theref ore, a member of the family class, pursuant to Immigration and Refugee 
Protection Regulations2 (Regulations ) sections 117(1)(a) and 4.  
 
DECISION  
 
[3] Having considered the  evidence and submissions, the P anel finds that the appellant has 
proven on a balance of probabilities that the marriage is genuine and was not entered into 
primarily for the purpose of acquiring any status or privilege under the IRPA . The appeal is, 
therefore, allowed pursuant to section 66(c) of the IRPA . 
 
BACKGROUND  
 
[4] On April 4, 2012, the a ppellant and the applicant married in India. The applicant applied 
for a permanent resident visa for himself, and the appellant applied to sponsor the applicant as 
her spouse. By refusal letter dated April 22, 2013, the immigration officer refused that 
app lication for permanent residence, deciding that the applicant was excluded from being 
considered a spouse under the IRPA . The appellant filed an appeal of that decision.  
 
[5] At the hearing of this appeal the appellant testified and filed one exhibit of docume ntary 
evidence. The applicant testified by teleconference from India. The respondent filed one exhibit 
                                                                 
1 Immigration and Refugee Protection Act , S.C. 2001, c. 27 . 
2 Immigration and Refugee Protection Regulations , SOR, 2002 -227, as amended . 
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consisting of the Record  (Exhibit R -1), and was represented by Minister’s Counsel (“Minister”). 
The appellant was represented by counsel. At the end of t he hearing the P anel reserved its 
decision.  
 
[6] The 41 -year -old appellant was born in India. She became a permanent resident of Canada 
on February 17, 2006. She was previously married from 2003 to May 30, 2008, and was 
separated from her first husband in Marc h 2007. She has had no children from her previous 
husband or any previous relationship.  
 
[7] The 48 -year -old applicant was also born in India, resides there, and is a citizen of that 
country only. He too was previously married, from 1992 to February 28, 2009.  He has two 
children from his first marriage, with whom he is not in touch at all.  
 
[8] They have a son together, born in Canada on January 22, 2014. This child was conceived 
on a visit of the appellant to India.  
 
Position of Minister  
 
[9] At the end of the oral evidence from both the appellant and the applicant, the Minister 
suggested that there may be evidence that the marriage is a bona fides and genuine one. 
However, she submitted in particular that the evidence indicated that the marriage was entered 
into for  immigration purposes, thus the appeal should be dismissed. She suggested that, 
primarily, the issues relating to the development of the relationship raised this concern.  
 
[10]  After carefully and duly considering this observation as well as all the evide nce an d other 
submissions, the P anel allows the appeal.  
 
ANALYSIS  
 
[11]  A Canadian citizen or permanent resident may sponsor the application of a foreign  
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national as a member of the family class; a spouse is a member of the family class.3 However, if 
the marriage was  entered in bad faith, Regulations  section 4(1) excludes that spouse from the 
family class:  
 
4. Bad faith - (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 pers on 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.  
 
[12]  The appellant bears the burden of proof. To allow this appeal, th e appellant must satisfy 
the Panel on a balance of probabilities that the marriage is genuine and that it was not entered 
into primarily for the purpose of acquiring any status or privilege under the IRPA . 
 
[13]  The visa officer interviewed the applicant at the  visa office in Chandigarh, Punjab, India 
on February 28, 2013, and identified a number of concerns, causing him/her to refuse the 
sponsorship application. The appellant, who was in India at the time, was also interviewed by the 
visa officer. The reasons f or the refusal were based on what is in the CAIPS Notes in the Record.  
 
[14]  The Panel considers that the immigration officer had reasonable concerns and suspicions 
after examination of the file. However, the Panel finds that the evidence provided at this hear ing 
did alleviate the reasonable concerns noted by the immigration officer in the CAIPS Notes at the 
interview, and did not raise other aggravating issues.  
 
[15]  In considering whether the marriage is genuine for the purpose of the Regulations , the 
Panel may e xamine a number of factors4 and take into account additional evidence that was not 
before the immigration officer.5 There is no specific test used in determining whether a 
relationship is genuine6 and the factors vary in each case.  These factors include:  
                                                                 
3 Regulations , sections  130(1), 117(1)(a) . 
4 XXXXX  v. M.C.I. , 200 7 FC 632 (FC) and  XXXXXX v. M.C.I.  (2005), IAD TA3 -24409 (IAD).  
5 XXXXX v MCI , 2005 FC 1673; XXXXXX  v. MEI.  (1989), 7 Imm. L.R. (2d) 91 (FCA).  
6 XXX v MCI , 2007 FC 891, [2007] FCJ No 1157 at paragraph 13.  
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(a) The length of any prior relationship or co -habitation between the parties.  
(b) Their knowledge of the other’s history and their behaviours together.  
(c) The details of their engagement and marriage ceremony.  
(d) The frequency and substance of their communication while apart.  
(e) Their level of financial dependence.  
(f) Their marital or civil status.  
(g) Their age difference.  
(h) Their family background.  
(i) Their language.  
(j) Their respective interests.  
(k) Their family connections.  
(l) Prior attempts by the applicant to come to Canada.  
(m)  Knowledge of and contact with extended families of the parties.  
(n) Knowledge about the other’s daily lives.  
(o) Details relating to the raising of children.  
 
Oral Testimony at the Hearing and Analysis  
 
General Comment / Demeanour  
 
[16]  The Panel first wishes to note that the overa ll demeanour of the appellant, when giving 
testimony over a number of hours, led the Panel to be inclined to believe that she was credible. 
The Panel is aware that it is not reliable to base a decision fully, or primarily, on demeanour. 
However, hers did h ave the ring of truth, or reliability, and the Panel did place some weight on 
this.  
 
[17]  The demeanour of the applicant, on the other hand, did not have this effect. He was loud 
and insistent, and the Panel was not much swayed by his demeanour. However, it was  not so 
negative so that the Panel made any negative inference as to credibility from his demeanour.  
 
Existence of a Child  
 
[18]  The couple conceived and had a child, post -refusal. The child is with the appellant in 
Canada. For what it is worth, if anything, t he Panel notes that the appellant was 39 years old 
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when she had this baby, and it may be harder for a woman of that age to deal with a child, alone, 
than for a younger lady. While the Panel is aware that the presence of a child is not conclusive of 
a genui ne marital relationship, it can be strong evidence thereof. In this case, the Panel assigned 
this a good deal of weight.  
 
Compatibility  
 
[19]  The couple are both Sikhs from the Punjab, and speak Punjabi. She is 41 and he 48, 
which ages are somewhat compatible. Each has been married before, although the applicant has 
two older children. Thus, it can be said they are somewhat compatible.  
 
Visits of Appellant to India  
 
[20]  Post -marriage, the appellant traveled to India to visit the applicant. She was there 
February to  April 2013, and October 2014 to January 2015. Their child was conceived in the 
latter part of this visit. It is evident that the appellant has made a serious effort to spend time with 
her husband in India awaiting this appeal, and in fact they conceived a  child together during this 
time.  
 
Communication between Spouses / Financial Co -mingling  
 
[21]  In Exhibit A -1 there are a large number of documents showing the couple communicate 
regularly, and that there is financial support from the appellant to the applicant , as well as a joint 
bank account. While not conclusive, of course, evidence of this has been provided, so there is not 
an issue that it is not present.  
 
The Appellant’s First Marriage / Alcoholism of Applicant  
 
[22]  Issues related to this composed a significan t part of the concerns of the Minister, and the 
visa officer, in this appeal. The appellant gained her permanent resident status in Canada by this 
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first marriage, and she separated from her husband less than a year after being landed in Canada. 
Such past b ehaviour can be an indicator that the first marriage was one of convenience, and that 
by inference so can the within marriage. In fact, once of the concerns of the visa officer was that 
her first marriage may have been a marriage of convenience.  
 
[23]  The appel lant testified that her first marriage broke up for two general reasons. Her first 
husband was an alcoholic, and she believed he cheated on her. She was asked why she chose to 
marry an alcoholic, if her first marriage broke up for this reason. This is a va lid concern. She first 
responded that in fact the applicant is not a habitual drinker. She explained that he drank because 
of stress from his first marriage. Thus, she argued, as he was separating from his first wife, his 
drinking reduced.  
 
[24]  In his intervie w, the applicant explained that he had by that time reduced his drinking, so 
that it was no longer a problem.  
 
[25]  The evidence was thus that the applicant had been a drinker, but did not have a serious 
drinking problem at the time of the development of the r elationship with the appellant. Thus, the 
Panel does not find this to be a fatal impediment to this appeal. While not argued, it also could be 
hypothetically possible for a woman such as the appellant to make the same mistake twice, i.e., 
marrying an alcoh olic, i.e., some people do not learn from their previous negative experiences, 
and end up repeating them. However, the applicant was not a serious alcoholic when he married 
the appellant, so ultimately the Panel accepts the explanations offered in this mat ter.  
 
[26]  The appellant’s first marriage was discussed in some detail at the hearing. Like the 
present marriage, her first husband had two children from his previous marriage. He sponsored 
her to Canada. Her family was more or less in approval of the marriage.  However, their 
respective parents had not met, which is unusual. He visited her on occasion after marriage and 
before she immigrated to Canada. When she arrived in Canada, the relationship was acceptable 
at the beginning. His drinking was an issue, but no t the crucial issue. The key problem was that 
she believed he was seeing other women. In March 2007, she confronted him over this, and he 
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left.  
 
[27]  In his interview with the visa office, however, the applicant, when asked why his wife’s 
marriage broke down, c ited alcoholism and the fact that her first husband wanted to spend too 
much time with his children. At the hearing, the appellant explained that her husband may have 
misconstrued what he told her, confusing the appellant’s statements that he saw girls, or  women, 
with his own girl, or child (he had a son and a daughter). Also at the interview, the appellant said 
she had no idea how much time he spent with his children. However, at the interview, she also 
confirmed that the main reason for the break -up was t hat he was with other women.  
 
[28]  The Panel will thus note that there were some inconsistencies in this area of testimony, 
and they may not have been satisfactorily explained in full. The Panel also notes the Minister’s 
point that it would be unusual for the a ppellant to not know how much time her first husband 
spent with his children, in the period of a year or so during which they lived together in Canada. 
This may be a credibility issue, but the Panel has found, balanced against the other positive 
factors, t hat they should not be a bar to the success of the appeal. As well, the Panel must note 
that this broad area of credibility concern has to do primarily with her first marriage, which is not 
directly at issue here, and which was ultimately found to be a bon a fides marriage by the visa 
office.  
 
Details of First Meeting Between Appellant and Applicant  
 
[29]  The visa officer and the Minister shared this concern. On page 37 of the Record, in the 
Applicant Questionnaire, the applicant wrote that when the couple first met, on July 10, 2010, 
“The issue of our divorce was discussed in detail”. As the applicant was not finally divorced 
until 2012, with the divorce petition being filed in 2011, the issue was raised of how his divorce 
could be discussed in 2010, when it had not yet happened. She explained that what he meant was 
that he had separated from his first wife, in 2009. The appellant herself was divorced at that time, 
so the issue is not in regard to her marital status at the time, only his. The Panel accepts this 
explanation as plausible, and would find it harsh to dismiss this appeal based on what could be 
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semantics.  
 
[30]  The Panel also finds it plausible that when the couple first met in India, they would 
naturally discuss their previous significant romantic history. Submissions have been made herein 
that there was inadequate communication between them, such as the applicant not knowing how 
often the appellant’s first husband saw his children when he was living with the appellant in 
Canada. This is a case of the appell ant and applicant sharing their significant marital history 
upon first meeting, and the Panel finds it natural that they would do so.  
 
Previous Immigration History of Applicant  
 
[31]  The applicant had three times applied to come to Canada under Visitor’s Visa, and was 
refused each time. The Minister, and the visa office, is correct in observing that such a pattern 
can indicate a continuing desire to come to Canada, and thus that the current expressed reason, to 
be with his wife, may not be his real reason. The v isa office also noted that the applicant got 
divorced shortly after the second visitor ’s visa refusal, which could have indicated that he got 
divorced so he could re -marry, to a Canadian permanent resident, and thus gain permanent 
residence in Canada. As f or this latter point, the evidence was that the applicant’s first marriage 
had been gradually deteriorating, thus the Panel does not place much weight on the timing of the 
applicant’s visitor ’s visa applications to Canada vis -à-vis the landmarks in the det erioration of 
his first marriage.  
 
[32]  However, the evidence was that the applicant applied to come to Canada for Kabbadi 
tournaments. This apparently is a popular sport in Punjab. The Panel accepts this at its face 
value, as it does not have sufficient doubts  in regard to the credibility of the spouses not to.  
 
[33]  A related issue is that on one of the 2011 visitors visa applications, the appellant 
indicated that he was then married, to his first wife, when in fact he in fact he was separated. The 
appellant explai ned that the applicant at the time still hoped that he would be able to reconcile 
with his first wife. At the time, his first wife had not yet filed for divorce – she did this in May 
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2011. The Panel accepts this explanation as plausible.  
 
[34]  As well, the appe llant  testified that on a 2011 visitor ’s visa application, the applicant  did 
not indicate that one of the purposes of this visit was to see the appellant , and not only for 
Kabbadi purposes. The appellant could not explain this. However, the Panel has accep ted that he 
wished to come here to play XXXXXXX, and, while not argued, it is possible that he believed, 
possibly correctly, that if he mentioned that he also wished to come to see his wife, his 
application would be refused. It was refused in any event.  
 
[35]  There is some validity to these concerns. The Panel believes that the principal submission 
of the Minister is that the applicant has entered into this marriage principally for immigration 
purposes. The Panel agrees that there are some issues that may indic ate that. However, in this 
case, the explanations were, while perhaps not at all times completely convincing, to a sufficient 
extent plausible and acceptable.  
 
Wedding and Honeymoon  
 
[36]  The wedding was attended by all or most relevant close family members, in cluding 
parents, and there were approximately 200 persons in attendance. The couple took some short 
trips post -marriage. Thus, there is no significant concern in this regard.  
 
Photographs of the Couple  
 
[37]  The visa officer noted that the couple did not appea r to be smiling in the picture presented 
of them together. The Panel was also concerned about this, but noted, over several hours of 
questioning, that her personal demeanour did not include much smiling at all. Thus, the Panel’s 
concern in this regard was removed.  
 
 
 
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Future Plans  
 
[38]  The appellant indicated that the applicant would likely drive truck in Canada, as he has 
done in India. She even indicated that she procured an offer of employment from her workplace 
for him if he needed a job. As such, it appears  as if at least some thought has gone into the 
couple’s future plans in the event the applicant were allowed to immigrate to Canada.  
 
WEIGHING OF EVIDENCE  / CONCLUSION  
 
[39]  The Panel has found the appellant in particular to be generally credible, although the 
applicant’s demeanour (by teleconference) failed to buttress his evidence. The appellant, though, 
appeared convincing, and the evidence that she is caring for their child, conceived in a visit of 
XXXX to India, had great weight with the Panel. The Panel is  aware of the submission that the 
bigger issue may be that the applicant might have married the appellant in order for him to be 
sponsored to Canada. In this regard, several concerns were analyzed at the hearing. A prominent 
one was that it would appear im plausible for the appellant to twice marry an alcoholic. However, 
he had substantially stopped drinking at the relevant time, and still does not drink. There was a 
question that they discussed their “divorces” at their first meeting; however, this was not of great 
concern. There were issues that the applicant did not know much about why the appellant’s first 
marriage broke down. However, these issues were not of sufficient concern to outweigh the fact 
that the Panel simply believed the appellant, and that t hey have a child together. While there 
were some credibility concerns, then, they were relatively minor, and not so great as to vitiate the 
balance of the evidence.  
 
[40]  Thus, in carefully considering the whole body of evidence, as well as all the submissions , 
the Panel is satisfied that this is a genuine marriage and not entered into for immigration 
purposes.  
 
 
 
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[41]  The appeal is, therefore, allowed with respect to both the applicant.  
 
NOTICE OF DECISION  
 
The appeal is allowed .  The officer’s decision to refus e a permanent resident visa is set 
aside, and an officer must continue to process the application in accordance with the reasons of 
the Immigration Appeal Division.  
 
(signed)  “M. XXXXXXX”  
 XXXXXXXXXX  
  
                       October 13, 2015  
 Date  
 
 
Judicial Review – Under section 72 of the Immigration and Refugee Protection Act , you may make an application to the Federal Court for 
judicial review of this decision, with leave of that Court. You may wish to get advice from counsel as soon as possible,  since there are time limits 
for this application.  
 
 
2015 CanLII 94333 (CA IRB)

