The Federal Court of Canada recently gave a verdict in a pioneering case AP vs Canada (Citizenship & Immigration). The case involved a gay man and a straight woman who was denied the conjugal sponsorship of a child that was shared by them.
The gay man AP had moved to Canada as he faced persecution in his country of origin for being gay. In Canada, he had acquired the status of a protected person with PR. While in Canada, he met AM, a heterosexual woman with whom he had a child. They decided to raise the child as a couple though AP was still identified as gay, and not bisexual. So, he couldn’t go back to his home country, and neither could he, along with AM, relocate to a third country to get married.
This led to AP to seek to sponsor the child with AM as a conjugal partner, through the family class in Canada immigration.
But his application was denied by the Canadian immigration officer. AP then appealed to IAD of IRB. The IAD upheld the decision of the immigration officer on the grounds that:
- AM wasn’t AP’s conjugal partner, and
- AP couldn’t sponsor AM as such.
The IAD decided that a heterosexual woman and a homosexual man cannot meet the sexual component of conjugal partnership as the sexual and personal behavior of the couple was not consistent with a partnership that’s conjugal.
The further legal moves
AP appealed the IAD’s ruling to the Federal Court of Canada. Justice Fuhrer, the judge who pronounced the verdict in the case emphatically stated that IAD had made a mistake in deciding that AP and AM weren’t a conjugal unit. She upheld the possibility of couples with “mixed-orientations” who can form a conjugal union.
AP’s sponsorship occupation has been sent for redetermination to another officer.
The conclusion and hope for immigrants
The case reaffirmed the ability of Canadian courts to interfere and overturn unjust decisions related to immigration. The final verdict of the case enforced the gradual development and establishment of the conviction that sexual orientation cannot be a ground of discrimination. It also emphasizes the expansion that has happened in the understanding and definition of family in Canada.
The current Canadian government has laid emphasis on the rights of sexual minorities and their rights. The current government has even apologized for the discrimination against the LGBTQ population that was shown by former governments.
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PR – Permanent Residence
IAD – Immigration Appeal Division
IRB – Immigration and Refugee Board