Same sex conjugal partner PR application refused - 2nd time

[sunluvr]

The following is the text of the Refusal Letter we received today. First, a bit of preamble:

This is our second application after the first application was refused primarily because we did not demonstrate there was barrier to our cohabitation for 1 year or more, which we found out way too late after the appeal deadline that Carriere v. Canada (2018) struck that down as being a legitimate reason to refuse an application. This time, we received a Procedural Fairness Letter pointing out a number of concerns. Our response to the PFL refuted all their (mostly illegitmate) concerns, including emphasizing the Carriere case again. We have submitted reams of evidence demonstrating our genuine relationship for almost 7 years now, including proof of our cohabitating together for 3 years out of the last 6 years, although not 12 months consecutively - mostly 6 months on, 6 months off. The Refusal Letter mentions nothing of what was in the PFL. They simply say the applicant does not meet the definition of a member of the family class.

Regarding Subsection 11(1) of the Immigration and Refugee Protection Act, he has applied for 2 tourist visas during our relationship and both were denied.

I've had a rather lengthy discussion with ChatGPT and they say we have a very good case for appeal. Any comments, suggestions, advice welcomed.

---------------------------------------------------------------------------------------------------------
REFUSAL LETTER TEXT:

Dear XXXXXXX:

I have now completed the assessment of your application for a permanent resident visa as a member of
the family class, the class in which you applied. I have determined that you do not meet the
requirements for immigration to Canada.

Subsection 12(1) of the Immigration and Refugee Protection Act (IRPA) states that a foreign national
may be selected as a member of the family class on the basis of their relationship as the spouse,
common-law partner, child, parent or other prescribed family member of a Canadian citizen or
permanent resident.

Section 117(1) of the Immigration and Refugee Protection Regulations (IRPR) defines who is a member
of the family class. A foreign national is a member of the family class if, with respect to a sponsor, the
foreign national is

A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
(a) the sponsor’s spouse, common-law partner or conjugal partner;
(b) a dependent child of the sponsor;
(c) the sponsor’s mother or father;
(d) the mother or father of the sponsor’s mother or father;
(e) [Repealed, SOR/2005-61, s. 3]
(f) a person whose parents are deceased, who is under 18 years of age, who is not a spouse or
common-law partner and who is
(i) a child of the sponsor’s mother or father,
(ii) a child of a child of the sponsor’s mother or father, or
(iii) a child of the sponsor’s child;
(g) a person under 18 years of age whom the sponsor intends to adopt in Canada if
(i) the adoption is not being entered into primarily for the purpose of acquiring any status or
privilege under the Act,
(ii) where the adoption is an international adoption and the country in which the person resides
and their province of intended destination are parties to the Hague Convention on Adoption, the
competent authority of the country and of the province have approved the adoption in writing as
conforming to that Convention, and
(iii) where the adoption is an international adoption and either the country in which the person
resides or the person’s province of intended destination is not a party to the Hague Convention
on Adoption

(A) the person has been placed for adoption in the country in which they reside or is otherwise
legally available in that country for adoption and there is no evidence that the intended
adoption is for the purpose of child trafficking or undue gain within the meaning of the Hague
Convention on Adoption, and
(B) the competent authority of the person’s province of intended destination has stated in
writing that it does not object to the adoption; or
(h) a relative of the sponsor, regardless of age, if the sponsor does not have a spouse, a common-law
partner, a conjugal partner, a child, a mother or father, a relative who is a child of that mother or
father, a relative who is a child of a child of that mother or father, a mother or father of that mother
or father or a relative who is a child of the mother or father of that mother or father
(i) who is a Canadian citizen, Indian or permanent resident, or
(ii) whose application to enter and remain in Canada as a permanent resident the sponsor may
otherwise sponsor.

Based on the information provided, you do not meet the definition of a member of the family class
because Pursuant to section 2 of the IRPR, a conjugal partner means, in relation to a sponsor, a foreign
national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that
relationship for a period of at least one year.

Subsection 11(1) of the Immigration and Refugee Protection Act provides that a foreign national must,
before entering Canada, apply to an officer for a visa or any other document required by the regulations.
The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign
national is not inadmissible and meets the requirements of this Act. For the reasons set out above, I am
not satisfied that you are not inadmissible and that you meet the requirements of the Act. I am
therefore refusing your application.

If appeal provisions are allowed under IRPA, a letter will be sent to your sponsor notifying them of the
appeal provisions. The last known address for your sponsor will be used, which is:

XXXXX
XXXXX
XXXXX
XXXXX

If this address is not correct, please provide your sponsor's new address immediately so that this letter
can be resent to the new address.
The Right of Permanent Residence Fee that has been paid is refundable. A refund will be issued in due
course.
Sincerely,
Officer
Migration Section
-----------------------------------------------------------------------------------------------------

 

[James Russo]

Sorry, but it's impossible to give you good advice without access to your full application. Only with the complete information would it be possible to understand why IRCC keeps refusing your application and why there is a lack of evidence. A conjugal partner application is not easy, and due to your last two refusals, I would recommend living this relationship for at least a couple of years to be able to gather more evidence. After this time, hire a very good lawyer and check if what you have it's enough and worth it to apply. For now, you can't use the same evidences because IRCC already told you that it was not enough.

 

[sunluvr]

Sorry, but it's impossible to give you good advice without access to your full application. Only with the complete information would it be possible to understand why IRCC keeps refusing your application and why there is a lack of evidence. A conjugal partner application is not easy, and due to your last two refusals, I would recommend living this relationship for at least a couple of years to be able to gather more evidence. After this time, hire a very good lawyer and check if what you have it's enough and worth it to apply. For now, you can't use the same evidences because IRCC already told you that it was not enough.

Sorry I don't agree with your response at all. I've read hundreds of immigration appeals in CANLII and I feel confident there is far more logic and justice to be found in an appeals tribunal than in at least the immigration office that we have been dealing with, for 4-5 years now.

 

[Buletruck]

Sorry I don't agree with your response at all. I've read hundreds of immigration appeals in CANLII and I feel confident there is far more logic and justice to be found in an appeals tribunal than in at least the immigration office that we have been dealing with, for 4-5 years now.

So, 6 months on, 6 months off doesn't meet the definition of 1 year continuous cohabitation. You view on how it's been working doesn't match IRCCs requirement.....plain and simple. As for basing an appeal or review on CHAT GPT is very risky. There is enough documented evidence already from courts in several countries that AI has a tendency to make up its own data. You need to deal with the continuos cohabitation. It's not a debatable definition. It's 12 months continuous or it's not.

 

[James Russo]

So, 6 months on, 6 months off doesn't meet the definition of 1 year continuous cohabitation. You view on how it's been working doesn't match IRCCs requirement.....plain and simple. As for basing an appeal or review on CHAT GPT is very risky. There is enough documented evidence already from courts in several countries that AI has a tendency to make up its own data. You need to deal with the continuos cohabitation.

ChatGPT usually says what we want to hear, lol. It’s definitely not a good advisor. After two refusals, the person above wants to appeal… in my opinion, that’s a waste of time. I don’t believe that a lack of cohabitation alone is enough reason for a second refusal. It’s clear there’s a severe lack of evidence, and this person doesn’t want to accept that what she/he has is not enough. That’s why I suggested taking time to gather more evidence and then apply with a strong and solid application.

 

[armoured]

The following is the text of the Refusal Letter we received today. First, a bit of preamble:

This is our second application after the first application was refused primarily because we did not demonstrate there was barrier to our cohabitation for 1 year or more, which we found out way too late after the appeal deadline that Carriere v. Canada (2018) struck that down as being a legitimate reason to refuse an application. This time, we received a Procedural Fairness Letter pointing out a number of concerns. Our response to the PFL refuted all their (mostly illegitmate) concerns, including emphasizing the Carriere case again. We have submitted reams of evidence demonstrating our genuine relationship for almost 7 years now, including proof of our cohabitating together for 3 years out of the last 6 years, although not 12 months consecutively - mostly 6 months on, 6 months off. The Refusal Letter mentions nothing of what was in the PFL. They simply say the applicant does not meet the definition of a member of the family class.

Regarding Subsection 11(1) of the Immigration and Refugee Protection Act, he has applied for 2 tourist visas during our relationship and both were denied.

I've had a rather lengthy discussion with ChatGPT and they say we have a very good case for appeal. Any comments, suggestions, advice welcomed.

---------------------------------------------------------------------------------------------------------
REFUSAL LETTER TEXT:

Dear XXXXXXX:

I have now completed the assessment of your application for a permanent resident visa as a member of
the family class, the class in which you applied. I have determined that you do not meet the
requirements for immigration to Canada.

Subsection 12(1) of the Immigration and Refugee Protection Act (IRPA) states that a foreign national
may be selected as a member of the family class on the basis of their relationship as the spouse,
common-law partner, child, parent or other prescribed family member of a Canadian citizen or
permanent resident.

Section 117(1) of the Immigration and Refugee Protection Regulations (IRPR) defines who is a member
of the family class. A foreign national is a member of the family class if, with respect to a sponsor, the
foreign national is

A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
(a) the sponsor’s spouse, common-law partner or conjugal partner;
(b) a dependent child of the sponsor;
(c) the sponsor’s mother or father;
(d) the mother or father of the sponsor’s mother or father;
(e) [Repealed, SOR/2005-61, s. 3]
(f) a person whose parents are deceased, who is under 18 years of age, who is not a spouse or
common-law partner and who is
(i) a child of the sponsor’s mother or father,
(ii) a child of a child of the sponsor’s mother or father, or
(iii) a child of the sponsor’s child;
(g) a person under 18 years of age whom the sponsor intends to adopt in Canada if
(i) the adoption is not being entered into primarily for the purpose of acquiring any status or
privilege under the Act,
(ii) where the adoption is an international adoption and the country in which the person resides
and their province of intended destination are parties to the Hague Convention on Adoption, the
competent authority of the country and of the province have approved the adoption in writing as
conforming to that Convention, and
(iii) where the adoption is an international adoption and either the country in which the person
resides or the person’s province of intended destination is not a party to the Hague Convention
on Adoption

(A) the person has been placed for adoption in the country in which they reside or is otherwise
legally available in that country for adoption and there is no evidence that the intended
adoption is for the purpose of child trafficking or undue gain within the meaning of the Hague
Convention on Adoption, and
(B) the competent authority of the person’s province of intended destination has stated in
writing that it does not object to the adoption; or
(h) a relative of the sponsor, regardless of age, if the sponsor does not have a spouse, a common-law
partner, a conjugal partner, a child, a mother or father, a relative who is a child of that mother or
father, a relative who is a child of a child of that mother or father, a mother or father of that mother
or father or a relative who is a child of the mother or father of that mother or father
(i) who is a Canadian citizen, Indian or permanent resident, or
(ii) whose application to enter and remain in Canada as a permanent resident the sponsor may
otherwise sponsor.

Based on the information provided, you do not meet the definition of a member of the family class
because Pursuant to section 2 of the IRPR, a conjugal partner means, in relation to a sponsor, a foreign
national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that
relationship for a period of at least one year.

Subsection 11(1) of the Immigration and Refugee Protection Act provides that a foreign national must,
before entering Canada, apply to an officer for a visa or any other document required by the regulations.
The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign
national is not inadmissible and meets the requirements of this Act. For the reasons set out above, I am
not satisfied that you are not inadmissible and that you meet the requirements of the Act. I am
therefore refusing your application.

If appeal provisions are allowed under IRPA, a letter will be sent to your sponsor notifying them of the
appeal provisions. The last known address for your sponsor will be used, which is:

XXXXX
XXXXX
XXXXX
XXXXX

If this address is not correct, please provide your sponsor's new address immediately so that this letter
can be resent to the new address.
The Right of Permanent Residence Fee that has been paid is refundable. A refund will be issued in due
course.
Sincerely,
Officer
Migration Section
-----------------------------------------------------------------------------------------------------

I have a different tack than those above, but it boils down to: you need to speak to proper legal counsel. Not necessarily pursue this by means of filing an appeal, but deciding how best to proceed.

You have a strong opinion that the recent denial is contradictory to law and regs. That's fine, but after a second approval, doing so will be difficult, and possibly lengthy and expensive.

You and your partner will need to decide what your priorities are. I don't know your situation. It may be that the best approach would be to get married, become common law, or otherwise proceed.

Good luck. You will need to make difficult decisions.

I'm not trying to brush off your opinions about this. But it's very hard for someone outside to evaluate, and not worthwhile (in most cases) to say much, given the unusual circumstances. ChatGTP will not be a useful substitute for legal counsel.

 

[brittanyatk13]

As others have pointed out, it is really hard to answer without knowing your full case. If you want to have your best chance at the right choice, you'd need to consult a lawyer. Since this is the second time it has been refused, there will be even more scrutiny on the case. It doesn't seem that the issue is the lack of evidence of the legitimacy of your relationship (just based on what you already said), but rather their issue is that you don't meet the definition of a conjugal partner. I'm sure you included ample evidence why you could not get married AND why you could not cohabitate for 12 consecutive months to meet the common-law definition, but it seems they were not satisfied with that.

I'm not sure if there are any other scenarios in this case that could work, such as marrying in a 3rd country, applying for another visitor visa and trying to get married in Canada, etc without the background of both applicants, but I thought I would throw that out there as well. Wishing you the best of luck.

 

[armoured]

So, 6 months on, 6 months off doesn't meet the definition of 1 year continuous cohabitation. You view on how it's been working doesn't match IRCCs requirement.....plain and simple. As for basing an appeal or review on CHAT GPT is very risky. There is enough documented evidence already from courts in several countries that AI has a tendency to make up its own data. You need to deal with the continuos cohabitation. It's not a debatable definition. It's 12 months continuous or it's not.

It seems to me there's confusion here. For conjugal, there is no strict requirement for 12 months continuous cohabitation - that would already qualify for common law.

Conjugal is not - by definition/construction - separate and does not have the same requirements as common law. It's more subjective. Subjectivity in common law is basically about whether the 12 months cohabitation period was in the context of a conjugal relationship (living together as non conjugal roommates is not the same). Conjugal sponsorship recognizes that getting to the 12 months cohabitation period (or marrying instead) is not always feasible, even in the context of a conjugal relationship.

 

[sunluvr]

I am applying for the GCMS notes, which will hopefully shed more light on the actual reason(s) for the refusal. I also requested GCMS notes about 6 months ago prior to the applicant's interview. It took 2 months to get the notes last time, and with our first application it took 8 months to get them. In the meantime I will definitely be filing an appeal within the 30 day window.