Operational Bulletin 238 -
September 30, 2010
Amendment to Section 4 of the Regulations
Issue
http://www.cic.gc.ca/english/resources/manuals/bulletins/2010/ob238.asp
An amendment to section 4 of the Immigration and Refugee Protection Regulations was brought into force by an Order-in-Council decree today, September 30, 2010.
Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA) officers must commence applying the new provision on the day on which it entered into force. Therefore, effective today, CIC and CBSA officers must apply the new provision to all new applications, all applications in process for which a final decision has not yet been rendered and all new and pending appeals before the Immigration Appeal Division (IAD).
Background
The former R4 provision required two mandatory elements for determining “bad faith” relationships:
(a) that a relationship not be genuine; and
(b) that it was entered into primarily for the purpose of acquiring any status or privilege under the Act.
Although a “bad faith” relationship exists when either of these related factors is apparent, both elements had to be met when refusing a case under this Regulation and when supporting that decision on appeal.
In addition, the “bad faith” assessment for adoptions was combined in the former R4 with the assessment for marriages, common-law and conjugal partnerships, although the criteria for assessing an adoptive relationship differ from that used to assess the genuineness of the other relationships. An overlap between the “bad faith” assessment for adopted persons entering Canada as accompanying family members and adopted persons being sponsored as members of the Family Class (R117) led to additional ambiguity with respect to the assessment of genuineness for adoptions.
Amended provision
The amended R4 provision provides for each of the two “bad faith” tests to stand on its own and separates the requirement related to spouses, common-law partners and conjugal partners (R4(1)) from that related to adopted children (R4(2)). The amended R4 provision reads as follows:
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; or
(b) is not genuine.
4. (2) A foreign national shall not be considered an adopted child of a person if the adoption
(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) did not create a genuine parent-child relationship.
4. (3) Subsection (2) does not apply to adoptions referred to in paragraph 117(1)(g) and subsections 117(2) and (4).
Note that R4(2) applies to the assessment of adoptions which did not conform to the intercountry adoption process, such as domestic adoptions completed in the country of origin, and, therefore, lacked the involvement of provincial adoption authorities.
For greater clarity, within the context of a R4(2) adoption, the term “genuine” is associated with the assessment of the parent-child relationship.
Subsection R117(2) of the Regulations, which deals with the sponsorship of adopted children by citizens or permanent residents of Canada, has also been amended. The addition of subsection (b) now provides for an assessment of the bona fides of the adoption. R117(2) is, therefore, now consistent with R117(1)(g) and R117(4) which also require an assessment of whether the adoption was primarily “for the purpose of acquiring any status or privilege under the Act”. Hence, there is no need for officers to consider the provisions of R4(2) within the context of a sponsored application for a permanent resident visa for an adopted child which is being processed under section R117 of the Regulations.
The amended Subsection R117(2) is as follows:
R117(2) A foreign national who is the adopted child of a sponsor and whose adoption took place when the child was under the age of 18 shall not be considered a member of the family class by virtue of the adoption unless
(a) the adoption was in the best interests of the child within the meaning of the Hague Convention on Adoption; and
(b) the adoption was not entered into primarily for the purpose of acquiring any status or privilege under the Act.
Implications
Assessing the bona fides of spousal, common-law or conjugal relationships
These changes will enable CIC and CBSA to deal more effectively with marriages of convenience, an ongoing issue of concern. They will allow officers to determine that a spousal, common-law or conjugal relationship is not bona fide if it is either not genuine or was entered into primarily for the purpose of acquiring a status or privilege under the Immigration and Refugee Protection Act. Henceforth, only one of the two criteria will need to be present to determine that a relationship is not bona fide.
Assessing adoptions under R4(2)
With respect to accompanying children who have been adopted or children whose adoptions may not be processed under R117, the adoption may henceforth be determined to be a relationship of convenience or entered into in “bad faith” if it was either entered into primarily for the purpose of acquiring any status or privilege under the Act or does not create a genuine parent-child relationship.
Assessing adoptions under R117(2)
The addition of subsection R117(2)(b) to the Regulations clarifies that the adoption of a sponsored child under the age of 18 cannot be undertaken primarily for the purpose of acquiring any status or privilege under the Act.
Hearings before the IAD
Since a hearing before the IAD is de novo,as opposed to a judicial review of a decision, the IAD will base its decisions on the law that is presently in force at the time of the hearing and not the law that was in force at the time of the original decision by the officer.
Further information
The following operational manuals will be updated:
IP 5 – Section 12.3
IP 8 – Sections 5.19, and 5.25
OP 2 – Section 5.16, 12, 12.1, 12.2
OP 3 – Section 5.8, 5.9, 7.8
OP 6 – Section 6.4
OP 25 – Section 6.2
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