Immigrating: Appeals of Refused Spousal Sponsorship Applications
by Dan Kingwell
Daniel Kingwell is an immigration lawyer with Mamann and Associates. His focus is with hearings before the Immigration and Refugee Board and the Federal Court of Canada.
When a person sponsors his or her spouse for Canadian permanent residence, the application is sometimes refused by Immigration Canada. This can come as a disappointment to the couple, who often believe that marriage alone entitles the spouse to come to Canada. In fact, this is not the case, and some sponsorship applications are refused.
Common reasons for refusal include: the sponsored spouse has a criminal record; the sponsor is in receipt of social assistance, is bankrupt or is in default of a previous sponsorship agreement; or Immigration Canada believes that the marriage may be one of convenience. There are a number of reasons as to why Immigration Canada may believe that a marriage was entered into for immigration purposes. An example of a marriage that may be examined would be for cultural differences between the spouses, or inconsistencies in the history of the relationship between the couple.
What are the sponsor’s options when this occurs? Sponsors need to be aware that they have a right to appeal this decision to the Immigration Appeal Division ("IAD") of the Immigration and Refugee Board. Such an appeal is started by filing a notice of appeal with the local IAD office, and attaching a copy of the decision. Such an appeal must be filed within 30 days of receiving the refusal letter, or else the IAD may refuse to hear the appeal.
The IAD is an independent and impartial tribunal that will hear and decide the appeal. The government department responsible for immigration enforcement, Canada Border Services Agency ("CBSA"), will typically oppose the appeal. While both the IAD and the CBSA are both part of the federal government, they do not work together. It is up to the sponsor to convince a Member (a decision-maker) of the IAD in a hearing in person that the appeal should be allowed.
What does the sponsor need to do to win his or her appeal? Specifically, if the sponsorship application was refused due to the spouse’s criminal record, or for financial reasons, the sponsor will need to convince the Member that there are sufficient humanitarian and compassionate reasons to allow the spouse to immigrate to Canada in any case. These factors can include hardship to the sponsor or their children if the spouse is denied the right to come to Canada. The sponsor should also demonstrate that the spouse has rehabilitated and no longer poses a danger to the public.
If the sponsorship application was refused due to the belief that this is an "immigration marriage", the sponsor will have to prove, that he or she and the spouse are in a genuine marriage. This is typically proven with documentary evidence of the relationship, including proof of correspondence, visits and financial support, and may be supported by witnesses who know the couple.
Appeals in the Toronto area can often take one to two years or longer to be scheduled for a hearing before the IAD. This is a very long time to wait to be reunited with one’s spouse. To deal with this problem, the IAD has established an early resolution process, called Alternative Dispute Resolution (ADR), which allows the sponsor an opportunity to meet with a representative of CBSA, and convince them to consent to the appeal. If CBSA does not consent, the matter will then be scheduled for a hearing before an IAD Member.
The hearing takes place at the IAD offices, with the sponsor present. Typically, the sponsor and the spouse are both expected to give testimony before the IAD at their hearing. If the spouse is overseas, he or she will be allowed to testify by teleconference, if that evidence will be relevant.
Given the complexity of the issues and procedure at these hearings, and the importance of the decision to the sponsor and his or her spouse, it is best to consider hiring a qualified lawyer or consultant to represent them before the IAD. The representative can help advise on documents and witnesses you may wish to present to the IAD in considering the appeal, and can assist you at the hearing in presenting your case.
In the end, if the IAD grants the appeal, then the sponsorship application is returned to Immigration Canada for final processing. Immigration Canada may not refuse the application for the same reason as before, although they may refuse it for a new reason.
On the other hand, if the IAD refuses the appeal, then the only recourse for the sponsor is to apply to the Federal Court to judicially review the IAD decision. This is a very limited process, which may be pursued on legal grounds only.
As a final note, sponsors must be aware that their application to sponsor their spouse can be refused because they failed to report the spouse in the sponsor’s own application for permanent residence, if they were in a relationship at the time. Immigration law treats this as a very serious offence and the IAD has no humanitarian and compassionate discretion to allow the sponsorship appeal if the sponsor is caught by this section of the Act. There may, however, be other options available. This highlights the importance of always providing full and correct information in all immigration applications.