New Canadians immigrate to Canada through a variety of immigration pathways. One of the most popular is conjugal sponsorship. Historically, sexual intimacy has been a key consideration in determining whether a couple is really a couple. But that framework appears to be changing, with dramatic results.
In September 2020, the Federal Court of Canada issued a landmark ruling. Justice Fuhrer granted judicial review of a Canadian permanent resident’s attempt to sponsor a conjugal partner. Their names were abbreviated in public records, the man applying to sponsor was called A.P. and the woman he was trying to sponsor was called A.M.
The facts are somewhat unusual: A.P. and A.M. have a biological child together. But, A.P. identifies as a gay man, while A.M. is a straight woman.
The immigration officer and IAD rejected this application to sponsor, and the Immigration Appeal Division (IAD) concurred. A.P. sought judicial review at the Federal Court, and Justice Fuhrer, in her judgment, accepted A.P’s application for review. This development means that the decisions of the officer and IAD are overturned and sent back to another officer for redetermination.
A.P., had previously immigrated from an unnamed country to Canada. A.P. claimed persecution as a gay man in his country of origin. He was successful in obtaining protected status in Canada on this ground.
Afterwards, A.P. met up with A.M., a friend from university, in an unnamed third country. After what Justice Fuhrer describes as a ‘night on the town’ A.P. and A.M. were sexually intimate. A.M conceived and gave birth to a child. A.P. and A.M. decided to parent the child together and A.P. applied to sponsor A.M. and their child.
Despite their lack of shared sexual orientation, A.P. and A.M. claim to be engaged in a mutual and loving partnership and to seek to raise their child together as a family unit.
Justice Fuhrer concurred with A.P. and A.M.’s presentation of their relationship. In her ruling, Justice Fuhrer noted that the fact that the two parties in a relationship are of different sexual orientations, so-called mixed-orientation couples, is not necessarily a barrier to forming a conjugal unit.
Noting the Canadian system’s holistic approach and bearing in mind a number of other factors, such as financial interdependence and the presence of a shared child, Judge Fuhrer granted judicial review, ruling that AP and AM were unfairly denied consideration.
Justice Fuhrer’s ruling rightly recognizes that marital and family units are linked by many bonds, of which sexual intimacy is only one. It is difficult to imagine a heterosexual couple who are not engaged in sexual activity, whether for medical reasons or otherwise, being denied such an application. Therefore, this ruling is a step toward equality for gender and sexual minorities, and perhaps other couples who live in diverse arrangements, mixed-orientation or otherwise.
Ultimately, Judge Fuhrer agreed that the IAD’s decision was based on the officer’s own biases toward such a couple. Justice Further noted that the immigration officer in question did not consider the relevant cultural context from which A.M. came before immigrating to Canada, which would likely make openly discussing the details of his sexual orientation difficult and lead to increased pressure to wed and live the life of a heterosexual couple.
This ruling signals a greater acceptance of sexual and gender minorities in Canadian society, and sensitively considers the unique difficulties they face in certain cultural contexts. In short, IRCC, while maintaining rigorous immigration standards, should refrain from entering the bedrooms of its applicants.
We take immense pride in Canada’s record on LGBT asylum-seekers, and hope that one day there will be no need for individuals to seek asylum based on their sexual or gender identity. In the meantime, though, we can ensure Canada remains a beacon of hope for people throughout the world.
Canada has long been a leader in progressive values, and it’s time our immigration law caught up to meet changing realities. This ruling is a welcome step toward a more inclusive Canadian immigration system— one that better reflects the type of open and free society in Canada that people from around the world choose to make their own.
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