Tabesh Conversion for Spousal Sponsorship

Zhang Min, a Canadian citizen of Chinese origin, sponsored her newlywed spouse, Li Wei, to Canada. Unfortunately, the officer refused the application because they believed their marriage was invalid. The officer concluded that Zhang Min’s previous marriage was dissolved when she married Li Wei. Consequently, Zhang Min appealed the decision to the Immigration Appeal Division. Her counsel mentioned their only hope is Tabesh Conversion. She wonders what that is and how it can affect their appeal.

What Does Constitute an Invalid Marriage for Sponsorship

Under section 2 of the Immigration and Refugee Protection Regulations (IRPR), a marriage outside Canada must be valid both in its jurisdiction and in Canada. However, the limitations of the validity of marriage do not end there. Here are some other examples that you may not sponsor your spouse to Canada:

• The marriage was not genuine, and the primary purpose of marriage was to gain status in Canada (R4).
• The couple got a divorce so that one of them could move to Canada. They later remarried so the first could sponsor the other to Canada (R4.1).
• If any of the following circumstances occur (R5 and R117(9)):
  • The applicant is under 18 when they are subject to a sponsorship application.
  • The sponsor or the applicant was another person’s spouse at the time of their marriage.
  • While married and away from each other for more than a year, one becomes another person’s common-law partner.
  • They were not physically present at the marriage ceremony (i.e., the marriage was either online or by proxy). However, some exemptions exist for Canadian Forces.

If an officer refuses the application based on these issues, the sponsor may appeal the decision to the Immigration Appeal Division (IAD) of the Immigration Refugee Board of Canada (IRB). However, since these are excluded relationships, IAD may not consider Humanitarian and Compassionate (H&C) factors (A65). Therefore, you may consider filing a Judicial Review or using the Tabesh Conversion. Here, I explore the latter, but first, let’s talk about the Tabesh case.

Case Summary: Tabesh v. Canada, 2004 CanLII 76104 (IAD)

Tabesh v. Canada sets the precedence in assessing invalid spousal relationships.

Key Facts

• The appellant, Rita Tabesh, appealed the Minister of Citizenship and Immigration’s refusal of her sponsorship application for her spouse, Kourosh Nasr Esfahani.
• IRCC refused the sponsorship application because their marriage, conducted by proxy in British Columbia (BC) while Esfahani was abroad, was not recognized under Canadian law. The ceremony was performed by Alireza Farasati, a representative not officially registered to solemnize marriages under BC law.
• The appellant argued that the marriage was valid in Iran and that Canada has accepted similar proxy marriages for Canadian immigration sponsorship in other cases.

Legal Issues

1. Marriage Validity: Does Tabesh and Esfahani’s marriage meet the requirements of a “spouse” under the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations, given that it was conducted by proxy?
2. Alternative Family Class Membership: Should Esfahani be considered a “common-law partner” or “conjugal partner” if the marriage is invalid?

Legal Analysis

• The IAD found that the marriage did not comply with the British Columbia Marriage Act, which mandates that both parties must be present at the marriage ceremony in Canada. This requirement was unmet due to the applicant’s absence.
• The Immigration Appeal Division (IAD) noted a lack of evidence that the solemnizer, Mr. Farasati, was registered under BC law to perform the marriage, thus invalidating the ceremony under provincial law.
• The court further examined whether the relationship could alternatively qualify Esfahani as a “common-law partner” or “conjugal partner” under paragraph 117(1)(a) of the Regulations. However, there was insufficient evidence of cohabitation, intimacy, or mutual dependency to support either designation.

Conclusion

The IAD upheld the refusal of the sponsorship application:

1. Marriage Invalidity: The Canadian law did not recognize the marriage, rendering Esfahani ineligible as a “spouse” under the family class.
2. Lack of Alternative Grounds: The evidence did not support that the couple qualified as “common-law” or “conjugal” partners. Thus, Esfahani did not meet any criteria for family class membership under s. 117(1)(a) of the Regulations.
3. Humanitarian and Compassionate Grounds: Because Esfahani failed to meet family class criteria, the IAD could not consider humanitarian and compassionate grounds for the appeal under section 65 of the IRPA.

Decision: The IAD dismissed the appeal, affirming the Minister’s refusal to issue a visa.

How Tabesh v. Canada Created Tabesh Conversion

Although the IAD dismissed the appeal in the Tabesh case, they set some criteria for considering the relationship valid as a conjugal or common-law relationship. In Tabesh v. Canada, the IAD panel considered specific criteria to determine whether the relationship between Rita Tabesh and Kourosh Nasr Esfahani could qualify as either a “common-law partner” or “conjugal partner” under paragraph 117(1)(a) of the Immigration and Refugee Protection Regulations. The member employed a test that focused on several key indicators of a genuine, marriage-like relationship:

1. Cohabitation: To qualify as a common-law partnership, the couple must demonstrate a history of living together in a conjugal relationship for at least one year.
2. Conjugal Relationship Indicators: To assess whether the relationship could be classified as a “conjugal partnership,” the panel evaluated the degree of commitment and connection typically found in marriage-like relationships. The member identified specific factors expected in such a relationship:
   • Intimacy and Emotional Ties: Evidence of a close emotional bond or personal commitment akin to married couples.
   • Exclusivity: Demonstration of an exclusive, committed relationship that both parties view as marriage-like.
   • Mutual Dependency: Signs of interdependence, such as shared finances, joint decision-making, and concern for each other’s welfare.
3. Forms of Evidence: The panel considered what type of evidence might support these indicators, such as:
   • Correspondence (letters, cards)
   • Financial records (joint bank accounts, financial support)
   • Social proof (photos, travel records showing visits)
   • Legal arrangements (wills, life insurance policies listing each other as beneficiaries).

We usually refer to these guidelines as Tabesh Conversion. It is noteworthy that even IRB legal guidelines refer to Tabesh v. Canada. However, they have emphasized, “It must be noted that it is not common practice for the Immigration Appeal Division to amend refusal grounds without application from a party.” That’s why it is in the best interest of your clients that you beware of Tabesh Conversion.

A Notable Case: Abdi v. Canada, 2018 CanLII 141244 (IAD)

Abdi v. Canada is a notable case that uses Tabesh Conversion.

Key Facts

Ayan Mohamed Abdi, a Canadian citizen, appealed the refusal of her spousal sponsorship application for Abdulkarim Awil Hashi, a Somalian citizen residing in Malaysia. They married in a ceremony in Toronto in 2013, with Abdi present and Hashi participating via telephone from Malaysia. Immigration authorities refused the sponsorship because their marriage was invalid under subsection 5(c) of IRPR because Hashi was not physically present at the ceremony.

Abdi requested a “Tabesh conversion,” arguing that if the marriage was invalid for immigration purposes, the authorities should assess the relationship under the conjugal partnership category, which is acceptable under the family class.

Legal Issues

1. Validity of Marriage: Was the marriage legally recognized for immigration purposes under Canadian law, given Hashi’s absence from the ceremony?
2. Tabesh Conversion: Should the IAD apply the Tabesh approach to consider alternative family class designations, such as conjugal partners, despite the formal invalidity of the marriage?

Application of Tabesh v. Canada

The IAD relied on Tabesh v. Canada (2004), which held that where a marriage is invalid for formal reasons under Canadian immigration law, the IAD should consider whether the relationship could be classified under another recognized family category, such as a conjugal or common-law partnership. In Abdi v. Canada, the appellant argued that while their marriage did not meet formal criteria, their long-term commitment, exclusivity, and shared life goals justified considering them as marital partners.

Minister’s counsel opposed a Tabesh conversion, asserting that Hashi’s absence at the wedding entirely excluded him from the family class, based on paragraph 117(9)(c.1) of the IRPR. This section excludes spouses married without a physical presence from family class membership. The Minister argued this was an absolute exclusion that disallowed alternative classifications.

However, the IAD disagreed, citing Tabesh to emphasize that excluding the “spouse” designation does not bar consideration under the “conjugal partner” category if there is evidence of a genuine relationship.

IAD’s Reasoning and Analysis

The IAD found several factors supporting the Tabesh conversion:

1. Genuine Relationship Indicators: The panel reviewed evidence demonstrating the couple’s commitment, including their cohabitation in Malaysia, daily communication, and joint decision-making for their son’s care. Additionally, Abdi presented credible testimony about her and Hashi’s enduring relationship and the strong perception within their community that they were a married couple.
2. Applicability of Tabesh: The IAD noted that while subsection 5(c) of the IRPR excludes proxy marriages (those conducted without one party present) from the “spouse” category, it does not extend this exclusion to all family class categories. The panel concluded that Tabesh allows the relationship to be examined for conjugal or common-law partner status, given the genuine marital-like relationship.
3. Flexible Interpretation of the IRPR: Citing statutory interpretation principles, the IAD determined that the IRPR’s family reunification goals support an inclusive interpretation where genuine relationships meet family class criteria. This interpretation aligns with Canada’s immigration policy objectives, which seek to maintain the system’s integrity without penalizing genuine relationships due to formal technicalities.
4. Failure of Immigration Officials to Apply Tabesh Analysis: The IAD found that immigration officials did not consider the couple’s request to be assessed as conjugal partners despite soliciting and receiving additional information for this purpose. This omission amounted to a breach of natural justice and procedural fairness, as officials neglected to evaluate the marital partnership evidence Abdi submitted meaningfully.

Conclusion

The IAD allowed the appeal, finding that although the marriage was not valid for immigration purposes, the couple’s relationship satisfied the criteria for a conjugal partnership under the family class. Based on this finding, the panel ordered that the application proceed.

Summary of Tabesh Impact

In Abdi v. Canada, the IAD applied Tabesh to facilitate family reunification despite the formal invalidity of the marriage. The decision underscored that exclusion from the “spouse” category under the IRPR does not preclude consideration as a conjugal partner. This case reinforced Tabesh as a precedent for permitting alternative classifications in cases where genuine, long-term relationships face exclusion based solely on formal technicalities.

Final Words

Knowing and following the IRPR requirements is crucial to avoid future complications. Tabesh Conversion is not a perfect approach, but it could sometimes help. If you are facing complications or have questions, book a consultation session. Alternatively, complete the following form to contact our staff.

List of Cases

• Tabesh v Canada (Citizenship and Immigration), 2004 CanLII 76104 (CA IRB), <https://canlii.ca/t/gjxng>, retrieved on 2024-10-27
• Abdi v Canada (Citizenship and Immigration), 2018 CanLII 141244 (CA IRB), <https://canlii.ca/t/j0935>, retrieved on 2024-10-27