Blog Post.
IRCC assesses genuineness under section 4(1) of the Immigration and Refugee Protection Regulations, which asks two questions: was the relationship entered into primarily to acquire status under the Act, and is the relationship genuine today. A marriage of convenience finding follows if an officer answers either question against you, and Kingwell Immigration Law defends couples facing that allegation at every stage.
What this looks like from your side is rarely a legal debate. It is a separate interview, a letter giving you a short window to respond, and then a refusal saying an officer did not believe you.
Section 4(1) applies to spouses, common-law partners and conjugal partners, and it sets out two branches that operate independently. The provision was amended on September 30, 2010, so each branch now stands on its own instead of both having to be established together before a refusal can follow.
The two branches are:
IRCC has confirmed that only one of the two criteria needs to be present for a relationship to be treated as bad faith, following the 2010 amendment to section 4. This is why couples are sometimes refused even where the officer accepts they are living together and committed today.
A related provision, section 4.1, deals with relationships that were dissolved and then re-established primarily so that someone could acquire status. We identify which provision and which branch an officer has actually relied on, because that determines what evidence will move the file and what will be wasted effort.
We take the officer’s stated concern, work out which branch of the test it engages, and build a record that answers it directly. Most of the files that reach us have already gone wrong somewhere, either through an incomplete first application or through advice that made the situation worse.
Here is how we work on these matters:
Daniel Kingwell, who founded the firm and is an LSO Certified Specialist in Citizenship and Immigration Law, describes this side of the practice plainly: “A big part of my practice is really cleanup.”
There is no statutory checklist for genuineness, but the IAD and the Federal Court have settled on a recognized group of factors that officers apply in practice. They carry different weight from case to case, and no single factor decides the outcome on its own.
The factors commonly applied include:
None of these factors requires you to prove romance. We assess your file against them before an officer does, tell you where it looks thin, and advise on the documents that will close those gaps.
Several of the factors above were shaped by disputes about courtship, and they can work against couples whose marriages were arranged. A short interval between introduction and wedding, a ceremony organized by parents, and limited private contact beforehand are ordinary in many communities, yet they read on paper as haste.
Canadian courts and the IAD have recognized that a relationship should not be assessed through a North American lens, and that evidence should not be minutely scrutinized. That principle only assists you if the cultural framework is placed before the decision maker as evidence rather than assumed.
We do that work for you. Our role is to document how the match was arranged, who negotiated it, and how your community treats the marriage, so that an unfamiliar relationship structure becomes legible to an officer instead of suspicious.
An interview is the point at which a file stops being a paper exercise and becomes a credibility assessment. Officers commonly question each spouse separately and then compare the two sets of answers, because inconsistency between you is treated as more telling than any single wrong answer.
What typically happens:
We prepare clients for this before it happens, walking through the likely lines of questioning and the areas where the file is exposed. Where the format permits, we also attend and make submissions around the interview.
The officer’s contemporaneous notes are the real record of what happened in your interview, and they are the document on which a refusal is built. Nothing either of you later recalls about the conversation displaces what the officer wrote down at the time it took place.
Those notes then follow the file. If the matter proceeds to appeal, they form part of the appeal record disclosed to both sides, which means the account you are answering at a hearing is the officer’s summary rather than the interview itself.
This is why we treat the notes as the starting point rather than an afterthought. We obtain them, read them against your recollection, and build the response or the appeal around what the officer actually recorded.
A procedural fairness letter is the officer telling you, before a final decision, that they hold a concern serious enough to refuse on. In a genuineness case it usually sets out specific inconsistencies or gaps in your file, gives a deadline for reply, and invites you to respond.
Whatever the letter identifies is what an appeal will later be about, so a response that meets each stated concern with documents is worth far more than a general assurance that the marriage is real. Responses commonly fail because couples send a large volume of photographs and messages, none of which speaks to the concern the officer raised.
We draft these responses so that every allegation is answered on its own terms and filed within the deadline. If the letter reveals a problem that documents cannot fix, we advise you of that at the outset rather than after a refusal.
💡 Additional reading: Our guide to the procedural fairness letter explains the process and what a proper response contains.
A refusal does not close the matter, but the route you choose largely determines whether you get a real second look. The decision that carries the most weight here is whether you return to IRCC with a new application or take the case to an independent tribunal instead.
Reapplying feels like the natural response, and it is almost always the wrong one. A fresh application returns you to the back of the processing queue, in front of the same decision maker, with the earlier refusal sitting in your file and shaping how the new one is read.
There is one narrow exception, where the original application failed on a technical defect unrelated to genuineness. We assess which of those two situations you are in before any further filing is made.
An appeal to the Immigration Appeal Division is heard de novo, which means the member decides the case fresh on the evidence before them rather than reviewing the officer’s reasoning for error. IRCC itself acknowledges that an IAD hearing is de novo as opposed to a judicial review, which is precisely why the appeal is the stronger route.
Only the sponsor can file, and the notice of appeal must reach the IAD within 30 days of receiving the refusal decision. For couples in the Greater Toronto Area, that filing goes to the IAD’s Central office on St. Clair Avenue East in Toronto, which serves all of Ontario outside Ottawa.
| New application to IRCC | IAD sponsorship appeal | Federal Court judicial review | |
|---|---|---|---|
| Who decides | An IRCC officer | An independent IRB member | A Federal Court judge |
| Nature of the process | A fresh application on the merits | A hearing on the merits with oral testimony | A review for legal error, not a rehearing |
| Available for | Any refused applicant | Sponsors of refused outland family class applications | Inland refusals, and IAD dismissals |
| New evidence | Yes, but read against the prior refusal | Yes | Generally no |
| Filing deadline | None | 30 days from receipt of the decision | 15 days for decisions made in Canada, 60 days for decisions made outside Canada |
| Best outcome | Approval, or a second refusal | Appeal allowed and the application returned for processing | Decision set aside and sent back for a new decision |
The inland versus outland choice you made at the outset also shows its consequences here, because an inland refusal carries no right of appeal to the IAD at all. We advise on which route remains open to you and protect the filing deadline while that assessment is made.
The following case result is reported on our cases page and involved facts of exactly this kind.
Visa application rejected by IRCC processed for spousal sponsorship from India after an appeal to the IAD.
Overseas spousal sponsorship from India. IRCC rejected their PR application on the basis that the arranged marriage was not genuine.
We successfully appealed the decision to the Immigration Appeal Division, showing evidence of how the marriage was arranged, how the wedding took place, that they were having a child, and explaining their complicated prior marital history. IRCC was ordered to process the visa application.
Guraya v Minister of Citizenship and Immigration (2012 CanLII 46512)
Past results depend on the facts of each case and do not predict any particular outcome. What this file does show is that the evidence which wins a genuineness case is often material the original application never put forward, and identifying it is work we take on for you.
A finding that you misrepresented your relationship is considerably more serious than a refusal on its own. It carries a five-year period of inadmissibility under section 40 of the Act, during which a foreign national is generally barred from applying for permanent residence in Canada.
For a permanent resident who obtained status through a marriage later found not to be genuine, the exposure is a report under section 44 and a removal order rather than a refused application. There is normally no appeal against inadmissibility for misrepresentation, although section 64(3) preserves an appeal where the person concerned is the sponsor’s spouse, common-law partner or child.
A finding of this kind can frequently be answered, whether through a fairness response, an appeal or judicial review. Our guide on how to overcome inadmissibility due to misrepresentation sets out the routes available at each stage.
Criminal exposure sits at the far end of the scale, since arranging a false marriage for immigration purposes can attract fraud charges. A conviction of that kind can then create criminal inadmissibility in its own right.
We advise on how a complicated relationship history should be disclosed and presented, so that a difficult fact does not become an allegation of concealment.
Being told an officer does not believe your marriage is a difficult thing to absorb, and the process gives you very little time to respond well. We take on the parts you should not have to carry: identifying which branch of the test is in play, assembling evidence that answers the officer on their own terms, protecting the appeal deadline, and putting your relationship in front of a decision maker who will hear it properly.
Daniel Kingwell reviews these matters personally to determine whether the firm can help before any retainer is discussed. Where we take a file on, we act at every stage, from the fairness response through to the IAD and the Federal Court if it is needed.
Immigration officers’ notes are obtained through an access to information and privacy request, which returns the officer’s file entries and the reasoning behind a marriage of convenience refusal. Kingwell Immigration Law reviews those notes before advising on a fairness response, an appeal or a judicial review.
IRCC officers can review publicly available social media, compare answers against earlier applications, and ask a visa office to verify documents or speak to people named in a spousal sponsorship file. Kingwell Immigration Law audits what a couple’s record already contains before any response is filed.
An Immigration Appeal Division sponsorship appeal commonly takes a year or more from filing to decision, with IRCC producing the appeal record first and a hearing scheduled after the disclosure deadline closes. Kingwell Immigration Law builds the evidentiary record during that period rather than waiting for a hearing notice.
A sponsorship refusal does not cancel temporary status, so a sponsored spouse holding a valid visitor record or work permit keeps it until expiry, though extensions become harder to obtain after a genuineness finding. Kingwell Immigration Law reviews status options while an IAD appeal is pending.
The three-year sponsorship undertaking begins when a sponsored spouse becomes a permanent resident and remains in force through separation or divorce, and any social assistance the sponsored spouse receives must be repaid to the government. Kingwell Immigration Law explains these obligations before a sponsor signs.
