A Canadian citizen or permanent resident of Canada who has applied to sponsor their spouse or partner through the Outside Canada Family Class, and who have received a refusal of that application, may appeal the decision with the Immigration Appeal Division.
A refusal of an application under the Spouse or Common-Law Partner in Canada Class cannot be brought in front of the Immigration Appeal Division. Instead, a request for leave and judicial review must be made with the Federal Court of Canada.
Once a refusal of the sponsorship has been received, a Sponsor has 30 days to submit their request for an appeal to be heard.
A Sponsor cannot appeal a decision where the spouse or partner has been found inadmissible due to the spouse or partner being criminally inadmissible, having committed a misrepresentation or for having committed human rights violations.
The majority of sponsorship appeals brought to the Immigration Appeal Division involve a refusal based on the genuineness of the relationship. Simply said, the Officer does not believe that the marriage was contracted for love. Therefore when being heard at the Immigration Appeal Division, one must present further evidence of the genuineness of the relationship, either through documentation and/or oral testimony.
Oral testimony plays a very important role in the decision of the Board Member. Therefore it is important that a Sponsor, their spouse or partner, and any other person who may be called to testify, are well prepared for the questions that may be asked.
Some sponsorship appeals may go through a process called an Alternate Dispute Resolution (ADR). Not all appeals are referred to ADR. At the ADR level, it is not a Board Member who will make the decision – the decision lies with the Minister’s Counsel (the representative for Immigration, Refugees and Citizenship Canada (Immigration Canada)). If a positive decision is issued at the ADR, there will be no need to go a full hearing. If Minister’s Counsel cannot make a decision at the ADR process, then the sponsorship appeal will go to a full hearing before the Immigration Appeal Division. It is important to note that the information that is disclosed and discussed at the ADR cannot form part of the record at the Immigration Appeal Division.
If a positive decision is issued on the sponsorship appeal (either at the ADR or at the Immigration Appeal Division level), the file is returned to Immigration Canada for the continued processing of the file. However, if Minister’s Counsel (or the Minister of Immigration Canada) disagrees with the positive decision, they may apply for leave and judicial review of the decision with the Federal Court of Canada.
If a negative decision is issued at the Immigration Appeal Division, a Sponsor can apply to the Federal Court of Canada for leave and for judicial review.