Lost in translation? Why there is a need for stronger cultural competency and awareness in Punjabi spousal sponsorship immigration application decisions

This thesis analyzes the decision-making process of the Immigration Refugee Board (IRB) of Canada with respect to Punjabi spousal sponsorship immigration applications. Drawing on the legal theories of legal pluralism and critical legal pluralism, it examines the Immigration Appeal Division’s (IAD) use of credibility assessments in reaching independent decisions on the appeals before them. Previous studies have focused on the inconsistent application by decision-makers of statutory criteria and administrative guidelines on appeals in the Refugee divisions. This thesis examines the inconsistency, when conducting credibility assessments, in the IAD when dealing with East-Indian Punjabi applicants seeking spousal sponsorships. This thesis argues that the process by which individuals applying for spousal sponsorship have had to demonstrate the genuineness of their relationships, based on credibility assessments conducted by the IAD, is flawed as there is a significant degree of discrepancy among various decision-makers. The flaw stems from having to prove this genuineness in a way that accords with the subjective perceptions of IAD members regarding Indian marriages, and the norms and practices governing those marriages. In examining IAD decisions, it is clear that some decision-makers have, and continue to hold, narrow understandings of marriage practices. Such understandings are rooted in customary norms and practices. It can be argued that these customary norms can be seen from a legal pluralistic view by some IAD members, in that they are used to create objective standards for the applicants and appellants when, in actuality, studies and surveys have shown marriages are no longer consistently observing such norms. While some of these norms and practices still have some resonance, some IAD decision-makers have elevated these norms to such an objective extent that they contributed to a negative impact on Punjabi spousal immigration applications. In conclusion, this thesis argues that the legal theory of critical legal pluralism should be more strongly employed when conducting credibility assessments. The reasoning behind this is so that applicants and appellants that do not seem to adhere to these socio-cultural norms surrounding marriage practices, or the normative socio-cultural identities of their cultural backgrounds, should not be punished or have to deal with a negative outcome on their applications. This thesis further makes recommendations to improve cultural competence within the IRB, and perhaps other immigration administrative institutions, when assessing spousal sponsorship applications where culture and cultural norms play a crucial role.

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