CECIL ROTENBERG
<Contributor>
Canada’s immigration policy and legislation changes are taking place so fast that some people jokingly say that Immigration Minister Jason Kenney suffers from Attention Deficit Disorder. Even immigration professionals are confounded by the speed at which the immigration system is being overhauled.
In the past, before changes occurred in our immigration system, there was a consultative process so that we knew in advance the proposed changes as well as the regulatory particulars by which these changes would be brought into force. As professionals, we then had a pretty good idea of what was coming. However, ever since Minister Kenney has been given very broad and Czar-like powers by Parliament, he seems to be repeatedly changing the immigration system with little, if any, consultation.
One good example are the new anti-marriage fraud regulations announced on October 26, 2012. In Citizenship and Immigration Canada (CIC)’s own words: “CIC has introduced amendments to the Immigration and Refugee Protection Regulations (the Regulations) which specify that spouses, common-law, or conjugal partners who are in a relationship of two years or less with their sponsor and have no children in common with their sponsor at the time of sponsorship application are subject to a [two year] period of conditional permanent residence”.
The idea is simple and borrowed from the United States and elsewhere. It partly aims to reduce the considerable number of hours spent by immigration officers poring over documentation in an attempt to determine the bona fides of marriages which are used as a basis for immigration sponsorship.
Making a decision on the bona fides of a marriage is not an easy undertaking, and appeals from visa officers’ refusal decisions have taken as many as three or four days of evidence before a decision can be made. These appeals, in which I have been involved for decades, show that officers already enjoy a great deal of discretion in their decision making. Officers inquire into such private matters as the frequency of sexual intercourse, whether it is protected or not, what side of the bed the spouse sleeps on, the color of the partners’ underwear, etc. There are also more intrusive visitations by immigration officers of the spouses’ abodes searching out marital photos and other evidence.
So, the system is not a perfect one. In addition, there are few doubts that there has been a large amount of fraud particularly with respect to arranged marriages that exist as part of the culture of places such as India and Cambodia.
Thus, the Minister decided to issue a new kind of status to intending spouses not heretofore seen in our immigration law: temporary permanent residence. Yet immediately concern arises because of the potential abuse by the sponsoring spouse. The temporary visa places the sponsoring spouse in a position of power and the sponsored spouse in one of vulnerability. The new regulations seem to have been aware of this potential yet real problem and have devised a mechanism to avoid that: “the condition ceases to apply in instances where there is evidence of their abuse or neglect by the sponsor.”
However, it does not take much of a lawyer to see problems arising from ambiguities as to what amounts to abuse. This gives immigration officers further discretion as judges of marital problems. For example, the most obvious form of abuse is assault and that raises the question as to what constitutes assault for the purposes of the new regulations. For instance, one of my clients who had grabbed his wife’s cell phone and thrown it at her was convicted of assault with intent to commit serious bodily harm and was deported. Another possible example is where the husband becomes too zealous in his amours as against a potentially frigid partner. Does this constitute abuse? The total denial of sexual congress is justification for an annulment of the marriage, but does it constitute abuse? Moreover, is there any review from a decision of an officer, one way or another, as to whether or not there is abuse in a marriage?
Also, while the parties may be living together, the quality of their cohabitation has to be assessed. The Minister has assured that Canada Border Services Agency (CBSA), which is responsible for investigating immigration law breaches, will not intrude into the homes of spouses, but frankly I do not see this being observed by CBSA because the quality of the marital residence will likely need to be assessed before a realistic decision can be made. And if CBSA does go into people’s private quarters and finds that spouses are living in separate bedrooms, does this mean that they are still in residence together? Also, what happens to a marriage where one of the partners works out of town and comes home during the weekend? Are they still nevertheless living together even though they maintain separate addresses for five of the seven days of the week? And will a finding that they do not cohabit affect the officer’s decision under the new regulations?
In conclusion, it may very well be that the Minister has written off a lot of overseas responsibility and replaced it on the heads of inland officers with the new regulations. Will these regulations deter marriage fraud? Not likely, because some professionals, many of whom are unscrupulous, will find ways to circumvent the new marriage law, to confound CIC, and provide ways in which to falsely demonstrate compliance with the new residential requirements of marriage.
Cecil Rotenberg, Q.C. (Osgoode Class of 1959) is a senior Toronto immigration lawyer.