The Complex Dynamics of Gustatory Evidence in Spousal Sponsorship Appeals
Jessye Kilburn
BCL/LLB III, McGill University Faculty of Law
June 1, 2018
Illustration by Mari Andrew, used with permission from https://www.instagram.com/bymariandrew
If someone wants to sponsor their partner or spouse to come to Canada, they have to convince the immigration officer that the relationship is “genuine” and that it was not “entered into primarily for immigration purposes,” as required by the Immigration and Refugee Protection Regulations. If an application for sponsorship is refused, the applicant can appeal to the Immigration and Refugee Board (IRB), an administrative tribunal staffed with adjudicators (called “Members”) who will become the arbiter of whether their love is authentic.
Something so personal, intimate and complicated as “true love” is not typically in the wheelhouse of administrative or judicial institutions. In the process of grappling with matters of the heart, unusual and idiosyncratic forms of evidence tend to come into play. Typically, the law privileges evidence that is available to our eyes or ears, rarely delving into matters of taste. In the context of spousal sponsorship appeals, however, the IRB has repeatedly used a couple’s taste in food as a factor in assessing their compatibility and the genuineness of their shared experiences.
The French lawyer and gastronome Jean Anthelme Brillat-Savarin wrote in 1825, “dis-moi ce que tu manges, je te dirai ce que tu es.” Thus, “you are what you eat”—and yet, “à chacun son gout”. The physical act of putting food in our bodies is intimate and personal, while simultaneously being social, cultural and public.
Illustration by Mari Andrew, used with permission from https://www.instagram.com/bymariandrew
In the context of romantic relationships, the personal and cultural idiosyncrasies of food play out in complex ways, even when the couple and their community share a common culture (as evidenced by the plethora of contemporary perspectives on who should pay for dinner on a date). In relationships that stretch across cultures—and across borders—these dynamics are yet more complex.
Dietary preferences and shared experiences over meals—intimate details of a relationship—are made public at the IRB, entered into evidence by applicants (or government lawyers) in hopes of proving (or disproving) a relationship’s authenticity. Evidence must cross the barrier between one culture and another, in addition to the barrier between personal and public, to prove that the marriage is a genuine one. The IRB is looking for what one Member called the “shadings of emotion that come only from the realm of sincerity.”
When couples bring up shared tastes in food during testimony at the IRB, Members’ reactions have been varied. At times, this gustatory evidence has been accepted as a supporting factor in favour of a positive decision. While assessing whether a couple was “compatible as to age, place of origin, language, religion and social economic status” a Member accepted as supporting evidence testimony that they “share common interests such as enjoying going to the coffee shop together and talking to each other, and that they have the same taste in meals.” Another couple who successfully appealed at the IRB testified that they met when he was her taxi driver, and they “found that their family and life situations were similar and they had similar interests such as having similar tastes in food, liking movies and activities.”
One couple testified that they share a common interest in the “enjoyment of watery foods.” Counsel for the government labelled this argument as “absurd”, but the Member disagreed: “I see no reason why a couple might not enjoy having the same tastes in food. Just as a couple may like to eat steak, another couple may like to eat porridge or soup.”
Illustration by Mari Andrew, used with permission from https://www.instagram.com/bymariandrew
At other times, citing a common taste in food has been deemed superficial by the IRB. Asked about common interests, one couple responded that they “liked Vietnamese food such as rice, fish and dumplings.” In dismissing the appeal, the Member opined: “the tribunal notes that similar taste in food is not the cornerstone of compatibility with respect to a marriage.”
Another unconvinced Member recounted that “when asked about their common interests and hobbies at the hearing, [both spouses] give very general responses, such as walks in a park or similar food tastes.” Given a five and a half year relationship, the Member found that it was “simply not credible to the panel that they were unable to provide more detail about their common interests or hobbies, rather relying on very vague and general answers.”
Members have also used food to assess the genuineness of a wedding celebration. In one case, the absence of photographs of the wedding dinner and the inability to remember details about who prepared the food contributed to a decision that the couple’s story was “concocted and not believable.” In other cases, photos taken at a wedding dinner were cited as evidence in favour of a positive decision, and the presence of cake and juice was seen as evidence of a genuine celebration.
Illustration by Mari Andrew, used with permission from https://www.instagram.com/bymariandrew
The choosing, purchasing, preparing, and sharing of food is a universal enough experience to be translatable across culture and distance—at least, enough so that the IRB seems to find it a useful form of evidence. However, food is also deeply imbued with culture, and its meaning may not always be apparent. In the words of Barthes, food is “a system of communication, a body of images, a protocol of usages, situations, and behaviour”. In the culinary context, “substances, techniques of preparation, habits, all become part of a system of differences in signification.” While a basic need for food is universal, the language of food is not necessarily a universal one.
The French and British heritage of the Canadian settler state, handed down through jurisprudence and culture, has certain preconceptions about the meaning of food, love, and what makes a relationship genuine. IRB Members must use Canadian law and their own culturally-constructed intuition in an adjudication process that gives them significant discretion to assess what constitutes a genuine relationship in the culture(s) of the applicant and their spouse.
Success rates on appeal in sponsorship cases reveal significant variation by geographic region. Researcher Lacey Jane Forsyth analyzed a randomly-selected 50% of sponsorship cases reported on the RefLex database between the years of 2002-2008. She found that the success rate varied between 0% and 100%, depending on the geographic origin of the principal applicant, as follows:
Europe and United Kingdom: 100% (2/2)
North, South and Central America: 80% (4/5)
South Asian: 33% (12/36)
Middle Eastern: 17% (1/6)
Asian: 5% (1/20)
African: 0% (0/7)
Forsyth argues that these figures reflect, in part, variation in the size of the cultural gap between typical Canadian understandings of marriage and that of the applicants’ places of origin. To the extent that “Canada is dominated by a liberal discourse that emphasizes the pursuit of individual goals and happiness,” this discourse “prioritizes the wants and desires of the individual while discounting cultural and familial obligations in marriage.” Assessed according to this discourse, certain marriages are discounted: in particular, arranged marriages or other marriages that have little in common with the “love story” ideal of contemporary western culture. Based on these success rates, it seems that relationship narratives from certain regions of the world are more readily legible to the IRB than others.
NDP immigration critic Jenny Kwan recently denounced a “systemic problem” with the treatment of spousal sponsorship cases, drawing attention to an immigration officer’s recent refusal of an application because it did not conform to what he considered to be Pakistani “cultural norms.” The wife was three years older than the husband and the wedding had 123 guests, both of which the immigration officer considered unusual for “Pakistani culture,” and therefore reason to deem the couple “not well matched” and refuse the application. Ms. Kwan commented, “It’s one thing to say, ‘I do not believe in the authenticity of this marriage,’ it’s another to make a judgement on the quality of the marriage … I find that offensive.”
While there is no way to completely side-step these thorny cultural issues so long as we have an immigration system administered through case-based adjudication, we must pause to at least acknowledge their complexity. As David Howes argues, “doing cross-cultural justice involves suspending judgment for as long as it takes to achieve a double take on the genesis and representation of the ‘facts’ at issue in any given case.” An openness to the possibility that a couple could bond over shared enjoyment of “watery foods”, even if that is not something the adjudicator can relate to personally, can go a long way to ensure that decisions are based on truthfully-construed facts and not ignorantly-preconceived expectations or stereotypes.
Adjudicators must cultivate a mind that is open: neither blind to variations of culture, history and personality, nor relying on rigidly preconceived stereotypes of what form cultural difference will take. They must also develop a reflexive attention to their own culture, history and personality, and to the ways in which this influences their own ways of seeing. These are academic-sounding words, but the stakes are much more than academic: for those with deep cross-border attachments, the evaluation of this kind of evidence can fulfil or dash their hopes of building a life together in Canada with their chosen partner.
There are varied arguments worth making on the subject of immigration law reform, in spousal sponsorship cases and beyond. However, my purpose here is both narrower and deeper than a policy argument. At base, I am arguing for a recognition of what Avery Gordon calls “complex personhood” as a foundation for both adjudication of individual cases and broader conversations on policy. Gordon argues, simply, that people are complicated: that everyone’s life is “simultaneously straightforward and full or enormously subtle meaning,” all people “remember and forget, are beset by contradiction, and recognize and misrecognize themselves and others.” And yet, despite (or perhaps because of) this complexity, “even those called ‘Other’ are never never that.”
Illustration by Mari Andrew, used with permission from https://www.instagram.com/bymariandrew
As I was writing this piece, I was reminded of the poignant illustrations of Mari Andrew, an illustrator based in New York City. Her illustrations interspersed throughout this piece capture in picture form what I have tried to say in quite literally a thousand words: feelings of attraction and decisions on relational compatibility are kaleidoscopically varied, unpredictable, and idiosyncratic. Shared values and intellectual affinities may come into play, but so too may shared tastes and sensory affinities. Embodied intuition and reasoned pragmatism may be overlapping. If the law is going to adjudicate “true love,” it must be extremely sensitive in pronouncing on what is authentic or reasonable.
Illustration by Mari Andrew, used with permission from https://www.instagram.com/bymariandrew
Examining the cultural construction of taste at the IRB brings to the forefront the importance for immigration law and policy to recognize the complexity of human experience. We must move away from false and fearful demonization of migrants on the one hand, and unrealistic politicized romanticization on the other hand. We must move toward recognition of—and openness to—a shared humanity, in all of its common and kaleidoscopic complexity.
All links accessed June 11, 2018
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