The following research of the caselaw explores the difference between the two prongs of the bad faith marriage test under the Immigration and Refugee Protection Regulations (IRPR). According to subsection 4(1) of IRPR, it is possible that a marriage that satisfies the 4(1)(b) prong of the test, that is a marriage that is found genuine, may nonetheless still fail under 4(1)(a) and be found to have been entered into primarily for the purpose of acquiring an immigration status. As such, it is instrumental to try to isolate the criteria that a decision-maker would follow in order to determine whether marriage, common law or conjugal partnership was entered into for immigration purposes. However, as this research will demonstrate the two prongs of the test are virtually inextricable and the criteria that may be used to determine one of the prongs of the test may also be used to determine the other. The research that follows is attributed to Deborah Rachlis and Felix Chakirov.
s. 4(1) of the IRPR states:
Bad faith
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; and
(b) is not genuine.
The test under s. 4(1) has two prongs. In order to succeed on appeal, the appellant must prove on a balance of probabilities that the marriage to the applicant was not entered into primarily for the purpose of acquiring any status under the Act and that the marriage is genuine. In order to dismiss the appeal the panel had to find that the marriage was entered into primarily for the purpose of acquiring any status or privilege under the Act or that it is not genuine.
Although the test for a finding that a person is not a spouse, common law partner, or conjugal partner under s. 4(1) of the IRPR is a two pronged test, very little distinction between the two prongs is made when the test is applied. In Sharma v Canada (Minister of Citizenship and Immigration), 2009 FC 1131, Snider J held that the two prongs of the test were closely related as
“[t]he lack of genuineness presents strong evidence that the marriage was entered into for the purpose of gaining status.”[1] Similarly, in Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC 417, Zinn J held “[i]f the evidence leads to a finding that the marriage is not genuine, then there is a presumption that it was entered into for the purpose of gaining status.”[2]
In Gill, Crampton CJ held that the two prongs are distinct tests, meaning that a finding that a marriage is genuine does not preclude the possibility that the marriage was entered into primarily for the purposes of immigration. In Gill, Crampton CJ notes that the second part of the test require an assessment of the intentions of the parties at the time of the marriage.[3]
Case Law On the Primary Purpose of the Marriage
In Dalumay v Canada (Minister of Citizenship and Immigration), 2012 FC 1179, the Court dismissed an application for leave and for judicial review of an IAD decision that the applicant’s marriage was entered into primarily to gain an advantage under IRPA, and therefore was not genuine. At paragraph 28 of Dalumay, the Court agreed with the respondent that the genuineness of the marriage and the ulterior purposes of the marriage must be assessed from the perspective of each of the parties, “so that, where one party may honestly believe that there is a genuine marriage that has not been entered into for an improper purpose, the marriage is not genuine if the other party holds a different perspective.”[4] With regard to the s. 4(1) test, the Gagné J stated:
The evidence required in establishing the genuineness of the marriage is more objective as compared to that of the spouses’ true intentions in entering the marriage, as it speaks to broader aspects of the relationship. However, in my view, each component of the test set forth in subsection 4(1) of the Regulations requires the panel to analyze the primary and true intention of the spouses; this analysis calls for an assessment of their subjective perspectives. In fact, the factors to be considered in assessing whether a conjugal relationship exists, as set out in the Manual, include the degree of mutual commitment and support between the spouses and their expressed intention that the relationship will be one of long term, in addition to broader financial and social aspects of the relationship.[5]
Gagné J went on to hold
In the matter at bar, the IAD did not explicitly take issue with the evidence of the genuineness of the marriage, but concluded that for both spouses (although to a greater extent for the applicant’s husband) the marriage was primarily entered into for the purpose of acquiring status or privilege under the Act.[6]
There does not appear to be any criteria for determining whether a marriage was primarily entered into for the purpose of acquiring any status or privilege under the Act. In Zheng v Canada (Minister of Citizenship and Immigration), 2011 FC 432, Near J noted “[i]n fact, this Court has noted on a number of occasions that no specific test or set of criteria has been established for determining whether a marriage is genuine or not for the purposes of section 4 of the IRPR.”[7] Similarly, in Ouk v Canada (Minister of Citizenship and Immigration), 2007 FC 891, Mosley J held “[i]n order for the Panel to find that Ms. Ouk and Mr. Thorn’s marriage was primarily entered into for the purpose of gaining status or privilege under the Act, it must be able to show that that finding is based on the evidence.”[8] In Dalumay the court did establish that evidence to determine genuineness of marriage is more objective as compared to the spouses’ true intention, although analysis of the true intention is required for each prong of the test. In spite of the absence of a clear test, the cases reveal that decision makers have looked at certain elements in the assessment of the primary purpose prong of the test.
a) Intention of the Parties
In assessing the purpose of marriage, immigration officials inevitably have to consider the intention of the parties at the time of marriage. As such, in Gill v Canada the Court concluded that whatever occurred subsequent to marriage is not necessarily determinative.[9] The focus must be upon the intentions of both parties to the time of marriage and testimony regarding what the parties were thinking at the time will typically be the most probative evidence.[10]
In Tamber v Canada, the motive to live in Canada was considered in relation to the genuineness of marriage test. In that case the Court stated that being motivated to live in Canada in and of itself does not show that marriage was not genuine:
19 Furthermore, the Board’s observation that Mr. Singh was highly motivated to immigrate to Canada is self evident. Most individuals seeking to come to Canada are highly motivated to do so. This says little about whether a particular marital relationship is genuine.[11]
The case was distinguished in Gill v Canada, 2012 FC 1522 (para 27) on the basis that the IAD did not make its conclusions solely because the spouse was highly motivated to immigrate to Canada.
b) Immigration History
In trying to establish intention at the time of marriage, immigration officials have been zeroing in on the personal history of the parties, especially with respect to the sponsorees’ attempts to stay or enter Canada prior to marriage. In Dalumay for instance the court found it reasonable for the IAD to weigh in the fact that the sponsored spouse was a failed refugee claimant in its conclusion that marriage was entered into primarily for the purpose of immigration.[12]
In Grabowski v Canada, the court found it reasonable for the IAD to base its determination with respect to the purpose of the marriage on the sponsored spouse’s imputed determination to stay in Canada. In this case the sponsored spouse entered Canada with a work visa to work in a fast-food restaurant. The officer observed that there was an abundance of work in Germany yet after losing work in Canada, the spouse did not return to Germany. The officer therefore indicated that the sponsored spouse had a purpose of wanting to stay in Canada, which negatively affected the purpose of marriage test.
c) Credibility
Lack of credibility has also played a role in immigration officers’ determination that marriage was entered into primarily for purposes of immigration. In Grabowski the officer found that in addition to the spouse’s intention to stay in Canada, there were problems with respect to credibility. In that case, the officer found that evidence surrounding the circumstances of the spouses’ meeting was not credible. Negative credibility findings negatively affected the findings of the purpose of the marriage test.
d) Genuineness of Marriage
The finding that marriage is genuine in and of itself is not enough to show that it was not entered into primarily to acquire Canadian status, but genuine marriage can weigh in favor of a finding that it was not entered into for immigration. Genuineness of marriage was listed as a factor in Sharma although in this case marriage was considered not to be genuine and the court dismissed the application:
For one, a “genuine marriage” would weigh significantly in favour of a marriage that was not entered into for the purpose of gaining status in Canada. In this case (and, perhaps, in most situations), there is a strong link between the two prongs of the test.[13]
CIC’s Intention Behind the Recent Change in the Regulations
Prior to 2010 the IRPR denied sponsorship only when both of the criteria were not satisfied. According to the official statement in Canada Gazette,bad faith marriages can occur when either the marriage in question is not genuine or it was entered into for immigration purposes. The changes were made in order to allow officers to refuse a case if either of the “bad faith” prongs of the test is met. The statement goes on to say, “It is expected that, in most cases, officers will focus on the ‘primary purpose’ test. However, evidence of a lack of genuineness of the relationship will still be relevant in examining whether a relationship was entered into for status or privilege under the Act.”[14]
The statement disclosed how officers would be assessing the elements of the test:
“Normally intent must be inferred from the conduct of the parties and the particular circumstances of the case.”
…
“If immigration officers are presented with indications or evidence that a relationship is not genuine, this may reasonably lead an officer to suspect that the relationship was entered into to circumvent immigration requirements in order to obtain status or privilege under the Act.”
The statement further attempts to clarify the test by providing examples of non-genuine relationships, including forced marriages and where the relationship broke down before the application was submitted.
The statement acknowledges that while living in Canada may be an important consideration in choosing a marriage partner, it should not be the primary purpose of marriage.
[1] Sharma v Canada (Minister of Citizenship and Immigration), 2009 FC 1131 at para 18.
[2] Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC 417 at para 16.
[3] Gill v Canada (Minister of Citizenship and Immigration), 2012 FC 1522 at para 33.
[4] Dalumay v Canada (Minister of Citizenship and Immigration), 2012 FC 1170 at para 28.
[5] Ibid at para 30.
[6] Ibid at para 32.
[7] Zheng v Canada (Minister of Citizenship and Immigration), 2011 FC 431 at para 23.
[8] Ouk v Canada (Minister of Citizenship and Immigration), 2007 FC 891 at para 16.
[9] Supra note 3, at para 32.
[10] Ibid at para 33.
[11] Tamber v Canada (Minister of Citizenship and Immigration), 2008 FC 951.
[12] Supra note 4, at para 16.
[13] Sharma v Canada (Minister of Citizenship and Immigration), 2009 FC 1131.
[14] “Regulations Amending the Immigration and Refugee Protection Regulations (Bad Faith),” Canada Gazette (April 3, 2010).