Sponsorship Appeals Lawyer Toronto

What is a sponsorship appeal?

Sponsorship appeals are appeals by Canadian citizens or permanent residents of the refusal by the immigration authorities of their application to sponsor their family member including their spouse, partner, child or parent for permanent residence in Canada.

Sponsorship appeals are heard before the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB). 

The IAD is an independent administrative tribunal that acts like a court to review immigration department decisions, including hearing any new evidence. The IAD will then decide whether or not the decision of the immigration authorities should be overturned.

 

Who can appeal a sponsorship decision?

Canadian citizens or permanent residents whose application to sponsor a family member under the family class has been refused by IRCC can appeal the decision at the IAD. Family class members include a foreign spouse, common-law partner, conjugal partner, parents, grandparents, or children.

Sponsorship appeals are not permitted where the foreign applicant was found to be inadmissible under any of the following categories:

  • Serious criminality in Canada punished by a sentence of six months or more of imprisonment, or who have been convicted of an offence outside Canada, or who have committed an act outside Canada, that would be punishable in Canada by a maximum term of imprisonment of at least ten years,
  • Organized criminality;
  • Security grounds (terrorism, etc.);
  • Violations of human or international rights, or
  • Misrepresentation (only applicable to parental sponsorships).

 

Procedure before the Immigration Appeal Division in Sponsorship Appeals

Once the Canadian sponsor receives a refusal letter from the immigration department rejecting their application to sponsor their family member they have 30 days to appeal to the Immigration Appeal Division. The usual reasons for the refusal are as follows:

  • For spouse or common-law partnership sponsorships, the most common reason for refusal is that the immigration authorities do not believe the relationship between the couple is genuine and/or they believe that the relationship was entered into primarily for the purpose of immigration.
  • For parental sponsorships, the application is usually refused because the sponsor does not meet the financial requirements to sponsor his or her parents. 
  • Other common grounds of refusal include criminal or medical inadmissibility, or a misrepresentation in the immigration application. 

The Appeal Hearing

Once the appeal is filed the immigration authorities will produce a tribunal record. The record will contain a copy of the appellant’s immigration application and the computer notes of the immigration officer who refused the application, providing a detailed explanation for the refusal decision. In sponsorship appeals, the tribunal record will often include a copy of the initial sponsorship application, the refusing visa officer’s notes explaining the reasons for the refusal, and any other additional documents the Minister’s Representative will use during the hearing.

The IAD will review the record to see if the case is straight-forward or simple enough to be resolved at an Alternative Dispute Resolution (ADR) conference. An ADR conference is a meeting between the appellant and the lawyer for the immigration department to see if the case can be settled without the need to go to a full hearing. If the IAD believes the case is suitable for an ADR, they will invite the appellant to provide submissions explaining why their case should be allowed to go to an ADR. The Minister may also provide submissions. If the IAD schedules an ADR then this usually occurs within a few months of the appeal being filed and provides an opportunity for an early resolution of the case.

Sponsorship Appeals

Alternative Dispute Resolution

If the appeal is not settled at the ADR stage, or the ADR was unsuccessful, the IAD will schedule a full hearing. The immigration authorities will send their own lawyer, known as the Minister`s Representative, to the hearing to defend their decision to reject the application. The immigration department’s lawyer may adduce new evidence, cross-examine witnesses, and make submissions on the department’s behalf.

At the hearing the appellant will have an opportunity to present new documentary evidence, to testify as to the facts of the case, and to call witnesses. The appellant may also be represented by a lawyer who will conduct the examinations of the witnesses and who will also have an opportunity to make submissions on the appellant’s behalf.

A judge, known as a Member, will preside over the hearing and will render their decision orally or in writing at the conclusion of the hearing. The Appellant and any witnesses may also request an interpreter at the hearing if their first language is not English or French.

 
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Assessing Spousal, Common-Law Partner and Conjugal Sponsorship Appeals

In assessing spousal, conjugal and common-law partner sponsorship appeals, the IAD employs a two-prong test based on Section 4(1) of the Immigration and Refugee Protection Regulations, which defines a non-genuine relationship as follows:

Bad faith
4 (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) is not genuine.

In assessing the genuineness of the relationship, the IAD judge will make reference to the Immigration and Refugee Protection Act and its regulations, and the relevant jurisprudence of the Division and of the Federal Courts.  As a general rule, the factors that guide the Member’s decision are set out in Chavez v. Canada (Minister of Citizenship and Immigration), [2005] I.A.D.D. No. 353. 

IAD factors for assessing the genuineness of a relationship: 

  • a) intent of the parties to the marriage;
  • b) length of the relationship;
  • c) amount of time spent together;
  • d) conduct at the time of meeting, engagement and/or the wedding;
  • e) behaviour subsequent to the wedding;
  • f) knowledge of each other’s relationship histories;
  • g) levels of continuing contact and communication;
  • h) provision of financial support;
  • i) knowledge of and sharing of responsibility for the care of children;
  • j) knowledge of and contact with extended families of the parties; and,
  • k) knowledge about each other’s daily lives.
While these factors may guide the Member’s decision, they are non-exhaustive and vary from appeal to appeal.
 
The IAD Member will assess all of the evidence and will consider the submissions of the Minister’s representative and the lawyer for the appellant before making a decision in the case. Decisions are usually made in writing after the appeal hearing has been held. If the decision is in the appellant’s favour, the decision of the visa officer will be set aside and the sponsorship application will be returned to the visa office to continue processing. If the appeal is denied, there is the potential of a further appeal to the Federal Court.

The Benefits of having a lawyer for your appeal

Sponsorship appeals involve complex issues of law and procedure that only an experienced immigration lawyer will have full knowledge of. While an appellant does not have to be represented by a lawyer, he or she will be seriously prejudiced by acting alone and without counsel. It should be considered that an appeal before the IAD is an adversarial process and that the immigration authorities will have their own experienced lawyer present to argue against the appeal being approved. An appellant will not easily be able to compete with the immigration department’s lawyer unless they have a lawyer of their own who is equally experienced.

The Law Office of Matthew Jeffery specializes in complex cases and has over 20 years of successful experience representing clients in immigration appeals.

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