Same sex conjugal partner PR application refused - 2nd time

[CanGoldDigger]

Here is a good source to rely on:

https://www.canada.ca/en/immigratio...ouse/assessing-conjugal.html#conjugalCategory

 

[canuck78]

At the time of our first refusal, I did talk to an immigration consultant, not a lawyer. At that time, the applicant had not applied for a tourist visa, and that was one of the reasons for refusal. I wasn't fully aware of the appeal process at that time and by the time I was, the 30 day window had passed, and I also felt it wasn't really appealable in any event. Since that time, as I said in my original post, the applicant has applied for a tourist visa 2 times and both were refused.

He lives in Vietnam, marriage is not possible there. Only since earlier this year has same-sex marriage been legalized in Thailand, so that is now another potential option for us. Prior to that marriage was not possible.

The issue of cohabitation was raised by the VO during his interview. He is not as comfortable/capable to discuss it as I am. I had asked to be able to participate in the interview virtually, specifically to discuss this issue, however my request was ignored/declined. I had just come back from 5.5 months in Vietnam a month prior to his interview so was unable to appear in person.

Until I can see what's in the GCMS notes, there's not much point dwelling on what I know at this point.

Sad that it appears as though the 5.5 months on living together may not have been mentioned in the interview. Assume you have other proof of conjugal relationship like being on an insurance policy, some joint funds or proof of financial support, etc.

 

[armoured]

At the time of our first refusal, I did talk to an immigration consultant, not a lawyer. At that time, the applicant had not applied for a tourist visa, and that was one of the reasons for refusal. I wasn't fully aware of the appeal process at that time and by the time I was, the 30 day window had passed, and I also felt it wasn't really appealable in any event. Since that time, as I said in my original post, the applicant has applied for a tourist visa 2 times and both were refused.

He lives in Vietnam, marriage is not possible there. Only since earlier this year has same-sex marriage been legalized in Thailand, so that is now another potential option for us. Prior to that marriage was not possible.

The issue of cohabitation was raised by the VO during his interview. He is not as comfortable/capable to discuss it as I am. I had asked to be able to participate in the interview virtually, specifically to discuss this issue, however my request was ignored/declined. I had just come back from 5.5 months in Vietnam a month prior to his interview so was unable to appear in person.

Until I can see what's in the GCMS notes, there's not much point dwelling on what I know at this point.

To be clear, I think it is/would be abominable if the suggestion is being made that the sponsor should move to another country long enough to be common law. That is not and should not be the intent of the conjugal partner approach. Obviously though I've no idea what the discussion covered or what the basis for the refusal was.

I would /strongly/ suggest you speak to a lawyer, esp when you have the GCMS notes. A consultant is not a lawyer.

In parallel, I would also suggest you pursue the option of getting married. In the end that may be the faster way for you to be together. For what it's worth, it is possible to 'add' information to your existing file that you have married - at least one can for a file prior to refusal - and IRCC would have to 'accept' (receive) that info and include it in the file (in other words, effectively turning a conjugal app into a spousal app). I do not know precisely how this would work for a file where there is an appeal in process, but my guess is that it would help as long as the inadmissibility is not some other unrelated reason; a lawyer should be able to opine on that point.

 

[armoured]

Not exactly at the same boat with you (and hopefully won't get there), but this is my game plan in case of refusal. We also applied as conjugal, and got PFL a week ago with something like "I don't see a barrier for you to live together for a consecutive year and apply as common-law".

I sent the response with all the proofs (I have kids in Canada, my work contracts require my physical presence in Canada, PA can't reside here without a visa) and hope it is enough, but I'm mentally preparing for potential refuse and "go apply under family class".

I repeat the points I made above that there is NO justifiable reason for IRCC to contend that a sponsor should leave Canada in order to establish common law - it's an outrageous situation. If that goes further in this case, I would raise hell with my MP and get lawyers involved. Good luck.

In this case, we will do everything humanly possible to officially get married, even though it's hell of a quest (it's close to impossible to get an apostilled birth certificate from our country of origin), but the plan is to re-apply as a family.

Is providing an apostilled birth certificate a requirement in the jurisdiction where you'd get married? (I haven't run across that)

 

[sunluvr]

Btw, how long did it take to receive a refusal letter after submitting the response to PFL?

Submitted PFL response July 1, Refusal letter was received yesterday, September 11.

 

[sunluvr]

I would /strongly/ suggest you speak to a lawyer, esp when you have the GCMS notes. A consultant is not a lawyer.

Actually it's a well respected firm that's been around for 30 years, that has a lawyer listed on their team as an Associate in addition to other registered immigration consultants and other specialists. Their focus has always been directed at providing services for the LGBT community so that was important as well knowing that they had expertise in that area.

 

[whiterabbit]

there is NO justifiable reason for IRCC to contend that a sponsor should leave Canada in order to establish common law - it's an outrageous situation. If that goes further in this case, I would raise hell with my MP and get lawyers involved. Good luck.

Absolutely. And I'm literally flying back and forth to Europe to be able to spend at least a week together every couple of months, which is physically and mentally exhausting as hell.

However, if it comes down to refuse, basically the choice here will be between a long way to potentially achieve the justice (and could take years), or say f- it, get married and be together in Canada in half a year (given that even in our case officer confirmed that the relationship exists and clear).

I want to be together with the woman I love, and honestly I don't care it will force us to get married not as we planned (I proposed already)

 

[whiterabbit]

Is providing an apostilled birth certificate a requirement in the jurisdiction where you'd get married? (I haven't run across that)

It's basically a universal requirement when you get married in a country different from your country of origin as a foreigner. We both are from the same country of origin, and the docs from the country require the apostille to be recognized abroad. Going back there is not safe at all due to our political views / social media activity.

Most likely we will pick a country that accepts not apostilled docs from my motherland and get married there

 

[whiterabbit]

Submitted PFL response July 1, Refusal letter was received yesterday, September 11.

Holly...
I really hoped for a response within a couple of weeks to at least start preparing everything for our trip to /whatever country will let us get married/

 

[whiterabbit]

But between July and now you had an interview and some other action in the case, right?

 

[sunluvr]

But between July and now you had an interview and some other action in the case, right?

No, the interview was in June, followed by the PFL which came about 2 weeks after the interview.

 

[sunluvr]

Holly...
I really hoped for a response within a couple of weeks to at least start preparing everything for our trip to /whatever country will let us get married/

My research has shown that with PFL's, there is no 'expected timeline' with them, it could be a few weeks, months or even a year or more..

 

[whiterabbit]

No, the interview was in June, followed by the PFL which came about 2 weeks after the interview.

Oh man
We got the PFL right away the day eligibility started according to the tracker (Sept 3), submitted the response the same day. It is aligned with what we have in the case and pretty obvious in general. The officer asked why we don't live together - we explained with both my previous and current contracts stating the requirement to work in the office, and that the only time we were able to stay together long enough was when I lost my job and searched for a new one from my fiance's place. If it's not enough and does not appear to be a barrier to the officer - ok, we will go under family class, but the fact that we are in literal long distance relationships and I had like 40+ flights in total last year just so we can see each other while working in Canada - idk how it is "lack of commitment"

My research has shown that with PFL's, there is no 'expected timeline' with them, it could be a few weeks, months or even a year or more

Will see. I hope for a fast response as there isn't much to check: either our explanation is sufficient for the officer or it is not.
Anyway, after reading through your case and chatting with my fiance about it, we decided that if there's no response by the beginning of November, we are booking flights and wedding date.

 

[armoured]

Actually it's a well respected firm that's been around for 30 years, that has a lawyer listed on their team as an Associate in addition to other registered immigration consultants and other specialists. Their focus has always been directed at providing services for the LGBT community so that was important as well knowing that they had expertise in that area.

Be that as it may, I repeat my suggestion and comment that you need an immigration lawyer and not a consultant - IMO. Your call, of course.

 

[armoured]

It's basically a universal requirement when you get married in a country different from your country of origin as a foreigner. ...

Most likely we will pick a country that accepts not apostilled docs from my motherland and get married there

I've not encountered it myself (and yes, have done personally). But can't argue with what you've encountered.