ARCHIVED – Operational Bulletin 541 (modified) – December 11, 2015

Amendment to the Sponsored Spouse/Partner Questionnaire [IMM 5490] and the Spouse/Common-Law Questionnaire [IMM 5285]

Summary

This Operational Bulletin (OB) provides information regarding revisions made to the Sponsored Spouse/Partner Questionnaire [IMM 5490 (PDF, 822.11KB)] and the Spouse/Common-Law Questionnaire [IMM 5285 (PDF, 631.33KB)]. Questions 31 and 13 have been added to the IMM 5490 (PDF, 822.11KB) and IMM 5285 (PDF, 631.33KB) forms respectively in order to request the sponsored spouse’s voluntary consent to release to the sponsor the results of any investigation of marriage fraud. These changes are applicable to family class spousal, common-law partner, or conjugal partner applications (categories FC1, FCC and FCE respectively).

Issue

The purpose of this OB is to provide information related to a change to the IMM 5490 (PDF, 822.11KB) and IMM 5285 (PDF, 631.33KB) forms.

Background

The Government of Canada is concerned about marriage fraud, which can victimize Canadian citizens and permanent residents and undermine the integrity of Canada’s citizenship and immigration programs.

To address the issue of marriage fraud (marriages of convenience), Citizenship and Immigration Canada (CIC) has implemented the following three regulatory amendments:

• a conditional permanent residence measure for spouses and partners who are in relationships of two years or less in length and who have no children in common (see OB 480);
• a five-year sponsorship bar that prevents a sponsored spouse or partner from sponsoring a new spouse or partner within five years of being granted permanent residence (see OB 386); and
• changes to section 4 of the Immigration and Refugee Protection Regulations (IRPR) related to defining “bad faith relationships” (see OB 238).

Sponsors have expressed concern, that if there is an investigation into allegations of marriage fraud involving the sponsored spouse, the results of that investigation cannot be released to the sponsor. To address this concern, both the IMM 5490 (PDF, 822.11KB) and IMM 5285 (PDF, 631.33KB) forms have been amended to include the following question: “If there is an investigation into marriage fraud about you, do you consent to Citizenship and Immigration Canada and the Canada Border Services Agency releasing the results to your sponsor?”

Everyone who submits an application for permanent residence and as a spouse or partner under the family class category must complete the Sponsored Spouse/Partner Questionnaire [IMM 5490 (PDF, 822.11KB)] and everyone who submits an application for permanent residence and is being sponsored by a spouse or common-law partner in Canada must complete the Spouse/Common-Law Questionnaire [IMM 5285 (PDF, 631.33KB)]. The form must be completed and included with the application for permanent residence.

Instructions on consent and revocation of consent

Either the IMM 5490 (PDF, 822.11KB) form or the IMM 5285 (PDF, 631.33KB) form must be submitted with the appropriate application for permanent residence.

The consent provided in response to questions 31 and 13 on the IMM 5490 (PDF, 822.11KB) and IMM 5285 (PDF, 631.33KB)forms respectively is voluntary, and if consent is not provided, the outcome of the application will not be affected.

Although the spouse may provide consent at the time of application, the same consent may be revoked at a later date by advising CIC’s Case Processing Centre in writing. If the Case Processing Centre receives from the sponsored spouse a request in writing to revoke consent, the request should be scanned and saved in eDocs, and a note should be added in the Global Case Management System (GCMS) to indicate that consent was revoked. If consent is revoked no information is to be released.

The consent provided in the IMM 5490 (PDF, 822.11KB) form and the IMM 5285 (PDF, 631.33KB) form is only to release the results of a marriage fraud investigation. If consent is given, the office conducting the investigation should provide only the sponsor with information regarding the final outcome of the marriage fraud investigation—i.e., whether there was a finding of a bad faith relationship as defined under subsection R4(1)—and the reason for the decision. The release of information does not include

• enforcement proceedings, such as the writing of section A44 reports, removals, or loss of status; or
• the assessment of a request for an exception to the condition for a sponsored spouse or partner

Assessing if consent was given during a CIC or CBSA investigation

If the officer conducting an investigation receives a request from a sponsor to be informed of the results of a marriage fraud investigation regarding the spouse or partner they have sponsored, the following steps must be taken to assess if the sponsored person gave their consent on the IMM 5490 (PDF, 822.11KB) form or the IMM 5285 (PDF, 631.33KB) form:

1. Verify the family class (FC) application in GCMS.
   1. Check the date that the application was received.
      1. If the application was received on or before October 8, 2013, the IMM 5490 (PDF, 822.11KB) form or the IMM 5285 (PDF, 631.33KB) form did not have the option to give consent. As a result, the sponsor or their authorized representative should be notified that CIC cannot release the information regarding the status or result of the investigation.
      2. If the application was received after October 8, 2013,
         1. search the sponsored person’s information in GCMS (notes, FC application, eDocs) to locate any confirmation that consent was given on the IMM 5490 (PDF, 822.11KB) form or the IMM 5285 (PDF, 631.33KB) form;
         2. if there is no indication of consent in GCMS, verify the location of the paper file for the FC application, and contact the responsible office to verify if consent was given on the IMM 5490 (PDF, 822.11KB) form or the IMM 5285 (PDF, 631.33KB) form; and
         3. if consent was given on the IMM 5490 (PDF, 822.11KB) form or the IMM 5285 (PDF, 631.33KB) form, ensure there are no subsequent notes or correspondence in GCMS confirming that the sponsored person revoked their consent in writing.
   2. If there is no current consent from the sponsored person, the officer conducting the investigation should inform the sponsor or their authorized representative that CIC cannot release the information regarding the status or result of the investigation.
   3. If there is valid consent, the sponsor may be provided with the results of the marriage fraud investigation.
   4. Notes should be added in the GCMS FC application to track the request for information from the sponsor.

In the situation where the sponsor contacts a different CIC or CBSA office than the office responsible for the investigation, the office contacted should refer the sponsor to the office responsible for the investigation.

Canadian Victims Bill of Rights

In the situation where the sponsor requests information on an investigation on the basis of being a victim as per the Canadian Victims Bill of Rights (CVBR), the sponsor should be informed that, as per section 18(1), the CVBR applies to criminal offences that are investigated and prosecuted in the criminal justice system. It does not apply to investigations conducted by CIC under the Immigration and Refugee Protection Act or its Regulations, which are administrative in nature.

Considerations in situations of abuse

• Officers should not release any information regarding any type of abuse without the written consent of the victim.
• In all cases involving abuse, neglect or child abuse, officers must document in GCMS all steps taken.
• When individuals report abuse, neglect or child abuse to CIC, officers must document in GCMS that such information may be exempted under section 17 of the Access to Information Act or section 25 of the Privacy Act, since the disclosure of such information could reasonably be expected to threaten the safety of individuals.
• All officers or agents who receive information regarding any form of abuse against a child must report it to their immediate supervisor or manager and to CIC National Headquarters, as outlined in the procedures on reporting sensitive cases.
• The supervisor or manager should consult with the local director and report the information to the appropriate authorities. Information should be released to the authorities without the consent of the individual only if there is a clear and imminent threat of harm or danger to any children.
• Where there is information regarding child abuse, but there is no clear and imminent threat of harm or danger to any children, a memo to the Deputy Minister should be drafted using existing templates to request that the Deputy Minister release the information to the authorities without the consent of the individual. Paragraph 8(2)(m) of the Privacy Act allows for the disclosure of personal information, in certain circumstances, without the consent of the individual concerned, if the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure or if the disclosure would clearly benefit the individual concerned.
• CIC officers must follow the procedures for reporting sensitive cases, including notifying the Operational Management and Coordination Branch (OMC) at OMC-GOC-Immigration@cic.gc.ca.