helpseeker12 said:
Hi
I followed your post, and hope you can guide me with your experience .
My husband is Canadian citizen and i am from India , our application is refused and we got refusal letter in five days with 4 reasons , we by mistake provided 2 wrong information and i wonder how could our consultant not point those.
I want suggestion if it is possible for us to reapply instead of appeal?
As lawyer is asking for 30,000 Canadian dollar for taking our case of appeal and stating 2-3 years period.
And i dont know how to fight with points for which i dont have proof.
Can i re apply?
Please guide me , my time for appeal is running....
Thanks in advance
I think Mr.Sardara Singh Chera is a good consultant.His fees is approx. 5500/- CAD. I Found his Number from this forum.please friends advice me kya ye theek hai ya kisi aur ko hire karo.meri abhi usse baat chal rahi hai.
IAD File No. / No de dossier de la SAI: TB0-05124
Client ID No. / No ID client: 5780-4328
Reasons and Decision Motifs et décision
SPONSORSHIP
Appellant(s)
DAVINDER SINGH NIJJAR
Appelant(e)(s)
Respondent
The Minister of Citizenship and Immigration
Intimé(e)
Le ministre de la Citoyenneté et de l'Immigration
Date(s) and Place of Hearing
In Chambers
Date(s) et lieu de l'audience
Toronto, Ontario
Date of Decision
August 9, 2012
Date de la décision
Panel
Harvey Savage
Tribunal
Counsel for the
Appellant(s)
Sardara Singh Chera
Conseil(s) de l'appelant(e) / des appelant(e)(s)
Counsel for the Minister
Ian Catterall
Conseil du ministre
2012 CanLII 97402 (CA IRB)
IAD File No. / No de dossier de la SAI: TB0-05124
Client ID No. / No ID client: 5780-4328
Reasons for Decision
INTRODUCTION
[1] Davinder Singh NIJJAR (the “appellant”) sponsored his spouse, Baljit Kaur (the “applicant”), to Canada. His spouse's application for a permanent resident visa was refused by a visa officer at the Canadian High Commission in New Delhi, India. The visa officer found that his wife was not his “spouse” for the purposes of Canadian immigration law. The appellant appeals the visa officer's refusal to issue the visa.
[2] The appellant contends that the marriage is genuine and was not entered into primarily for an immigration purpose.
ISSUE
[3] The issue in this case is whether the applicant falls within the class of persons described in section 4 (1) of the Immigration and Refugee Protection Regulations (the “Regulations”), thereby excluding the applicant from consideration as a spouse for the purpose of the Regulations. Section 4 (1) posits a disjunctive test. It reads as follows:
4 (1) Bad Faith – 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.
DECISION
[4] Having considered the evidence and the submissions of the parties, I find that, on a balance of probabilities, the marriage is genuine and that the marriage was not entered into primarily in order for the applicant to gain admission to Canada.
BACKGROUND
[5] The appellant is 27 and a citizen of Canada. The applicant is twenty-six. She was born in India and resides there now.
[6] The appellant and the applicant were married in India May 6, 2009. The appellant returned to Canada and sponsored the applicant.
ANALYSIS AND FINDINGS OF FACT
[7] The visa officer found that the applicant is not the appellant's spouse because of section 4 of the Regulations, which then read as follows:
4. For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.
[8] Section 4 has since been amended as Section 4 (1). As indicated the test is now disjunctive. That is the only substantive change, and the panel will conduct its analysis under the amended framework.
[9] In considering whether a marriage is genuine and whether the “bad faith” section 4 (1) of the Regulations applies to it, the Immigration Appeal Division (“IAD”) tends to look at a number of the same factors. However, these factors are not identical in every appeal as the genuineness of the marriage can be affected by any number of different factors in every appeal. The factors considered can include, but are not limited to the:
i) intent of the parties to the marriage;
ii) length of the relationship;
iii) amount of time spent together;
iv) conduct at the time of meeting, engagement and/or the wedding;
v) behaviour subsequent to the wedding;
vi) knowledge of each other's relationship histories;
vii) levels of continuing contact and communication;
viii) provision of financial support;
ix) knowledge of and sharing of responsibility for the care of children brought into the marriage;
x) knowledge of and contact with extended families of the parties, and
xi) knowledge about each other's daily lives.
[10] All of these factors can be considered in determining the genuineness of a marriage.2 The second prong of the test – whether the relationship was entered into primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act (“IRPA”) – is self-evident and self-explanatory: the advantage sought in spousal appeals is generally entry to Canada and the granting to the applicant of permanent resident status as a member of the family class.3
[11] The visa officer expressed the following main concerns:
The applicant dressed like a married woman, drawing attention to herself despite her stated wish to keep her marriage a secret because of parental objection to it;
The applicant did not make a complaint against her husband's parents despite saying they opposed the marriage;
The applicant said she provided intimate photos because her lawyer suggested to;
Limited time spent with appellant after the wedding;
Appellant has not returned to visit;
Delay in filing the sponsorship application; and
Applicant knew very little about appellant's life in Canada.
[12] The appellant testified at the hearing.
[13] At the conclusion of the appellant's testimony, the Minister's counsel agreed that the appellant was a credible witness, and that the marriage appeared to be genuine. The only concern was to eliminate the possibility hat the appellant and applicant might be brother and sister. The Minister's counsel agreed to consent to the appeal if DNA tests could confirm that they were not related.
[14] The hearing was adjourned to accommodate this request. A DNA report was sent in by counsel on July 5, 2012. The DNA analysis was conducted by Orchid Cellmark, 635 Columbia Street, New Westminster, B.C, Canada V3M 1A7. The report dated June 26, 2012 concluded that the appellant and applicant were not biologically related.
[15] The results were sent by email on August 2, 2012 from a case officer to the Minister's Counsel.
[16] On August 3, 2012 the Minister's Counsel consented to allowing the appeal.
[17] I agree with Minister's counsel. The appellant was credible and the evidence filed was also persuasive of a genuine relationship.
[18] The appeal is allowed.
NOTICE OF DECISION
The appeal is allowed. The officer's decision to refuse a permanent resident visa is set aside, and the officer must continue to process the application in accordance with the reasons of the Immigration Appeal Division.
“Harvey Savage”
Harvey Savage
August 9, 2012
