Couples in genuine relationships often believe that if they
just tell the truth and fill out the sponsorship forms correctly, all will end
well.
Unfortunately, this is not always the case.
Vikas Rakheja, a citizen of India, and his wife, Madhu Rani,
a Canadian permanent resident, must have also believed this.
In September 2002 they participated in a traditional Hindu
wedding ceremony. Rakheja entered Canada in 2003 and made a refugee claim that
was later denied. In December 2003, their son was born in Edmonton with a
medical condition. Rakheja and Rani purchased a house together in Canada and,
by all accounts appear to be a typical married couple.
In April 2008, Rakheja was arrested by immigration officials
for missing a scheduled interview. This incident prompted him and his wife to
do some essential housekeeping. In May 2008, they legally registered their marriage in Canada and in the same month submitted an inland spousal sponsorship
under the “Spouse or Common-Law Partner in Canada Class.”
In October 2008, they were interviewed by an immigration
officer who quickly refused their application.
Although this was a spousal sponsorship, the officer never
bothered to determine whether or not the relationship was a genuine one.
She didn’t have to.
Instead, she refused the application on the basis that
Rakheja’s passport had expired and that he did not provide evidence that he
could obtain a valid one.
As a general rule, applicants for permanent residence must
have in their possession a valid, non-expired passport in order to become
landed. However, the immigration department’s policy with respect to
applicants under the Spouse or Common-Law Partner in Canada Class makes an
exception to this rule. The exception states that “the use of a passport that
has expired during the processing of an
application may be appropriate in some instances to fulfill the [passport]
requirement.”
Rakheja’s passport expired not during the application, but
in January 2008 — four months before
he submitted his application.
Rakheja cried foul.
He appealed to the Federal Court and asked that the decision
be set aside. He complained that the officer ignored his family situation and
that he should have been given an opportunity to obtain a renewed passport
before a refusal was issued.
Last month, the Federal Court rejected Rakheja’s pleas. The
court held that it wasn’t necessary for the immigration officer to assess the
couple’s relationship before finding that Rakheja didn’t meet some other
requirement of the inland spousal class. Furthermore, Rakheja had told the
officer during the interview that he couldn’t get his passport renewed since he
believed that Indian officials would refuse to serve those who make refugee
claims against India. Accordingly, the Court concluded that the officer acted
reasonably given Rakheja’s view.
This case illustrates the advice that I often give my
clients. Immigration rules contain elements of logic but are not necessarily
governed by it. Logic would dictate that since this couple’s relationship seems
genuine, the application should be accepted. Logic does not lead us to conclude
that the application should be refused if the applicant’s passport expired
before the application was submitted, but not necessarily if it expired
afterward.
Couples often approach these types of
applications as if their relationship is the only issue. In reality, there are myriad criteria involved, some of which simply defy logic
Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at metro@migrationlaw.com.
