If your Family Sponsorship Application has been refused by IRCC (formerly CIC), you have the right to appeal that decision to the Immigration Appeal Division, or IAD, of the Immigration and Refugee Board of Canada, or IRB. After IRCC has refused your Family Sponsorship application, you have 30 days from the date you receive the refusal, in which to file an appeal with the IAD. The IRB – of which the Immigration Appeal Division, or IAD, is a part – is an independent tribunal and is neither a part of IRCC or of the Canada Border Services Agency, or CBSA. Your appeal hearing will be held at the IRB, and will be heard by an IAD Member, who will be a fully trained and qualified official of the IRB.

 

Sponsorship Eligibility:

If you have been found ineligible to be a sponsor because you fail to meet the sponsorship requirements, then you do not have the right of appeal. This is not the same as having your application for sponsorship refused, because this screening occurs earlier in the process and merely determines whether you are eligible to be a sponsor. You will receive a letter informing you of the results of the IRCC’s evaluation of your eligibility to be a sponsor.

 

Loss of Appeal Rights:

A sponsor may not appeal a negative decision by IRCC if the family member that they have sponsored is inadmissible to Canada because of one or more of the following:

  • a serious criminal offence that if committed in Canada would be punishable by 2 or more years of incarceration;
  • any involvement in organized crime;
  • security grounds;
  • violations of human or international rights;
  • misrepresentation, unless the person involved is the sponsor’s spouse, common-law partner, or child.

 

Appealing Your Rejected Application

Spousal Sponsorship Appeal

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The first step you must take is to download and print a Notice of Appeal – Sponsorship Appeal pdf form which you must then fill out and mail to the Registry Office of the Immigration Appeal Division, or IAD, along with a copy of the letter of refusal from the IRCC which you are appealing. This should be done within 30 days of the date you receive the letter of refusal from IRCC. Go here to download a copy of the Notice of Appeal form in PDF format. There are 3 Registry Offices of the IAD:

If you live in: Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, or the city of Ottawa, mail your form and the copy of your refusal letter to:

IAD Registry Office – Montreal
Immigration and Refugee Board of Canada
Immigration Appeal Division
Guy-Favreau Complex
200 Rene Levesque Blvd. West
Montreal, Quebec
H2Z 1X4
514 283-7733
514 283-0164 (Fax)

If you live in: Ontario – except for the city of Ottawa - mail your form and copy of your refusal letter to:

IAD Registry Office – Toronto
Immigration and Refugee Board of Canada
Immigration Appeal Division
74 Victoria Street
Toronto, Ontario
M5C 3C7
416 954-1000
416 954-1165 (Fax)

If you live in: British Columbia, Alberta, Manitoba, Saskatchewan, Yukon, Nunavut, Northwest Territories, mail your form and copy of your refusal letter to:

IAD Registry Office – Vancouver
Immigration and Refugee Board of Canada
Immigration Appeal Division
300 West Georgia Street, 16th floor
Vancouver, British Columbia
V6B 6C9
604 666-5946 or 1-888-787-7472
604 666-3043 (Fax)

You also have the option of making an application for an appeal orally at a proceeding at the IAD. It may be best to have counsel should you choose this option.

You have the right to be represented by counsel in the appeals process, at your expense. You must indicate whether you will be represented by counsel when filling out your Notice of Appeal – Sponsorship Appeal form. You must also provide all the requested information on your counsel as indicated on the form. This includes: Name, occupation, organization or company, address, phone, fax, and email, as well as what type of professional they are, (lawyer, paralegal, immigration consultant etc.) You must also immediately inform the IAD, in writing, of any change of your personal address or other personal contact information on your part.

 

Which Type of Hearing?

Spousal Sponsorship Appeal

The IAD will then decide whether to refer your appeal to the Alternative Dispute Resolution, or ADR, process or to have your appeal heard under the IRB Administrative Tribunal process. This will happen after an IAD Member, an official of the Immigration Appeal Division, or IAD, considers your appeal and decides which process is suitable for your case. The IAD Member is who will hear and decide your case. They fulfill a role similar to that of a judge. If the IAD Member selects your case for an Alternative Dispute Resolution, or ADR, process, you will receive a letter informing you of this decision along with an appellant’s guide to ADR Conferences. When the appeal of your case involves a spouse or common-law or conjugal partner that you are trying to sponsor, then the ADR process is often, but not always, selected.

 

Alternative Dispute Resolution, ADR, process:

The approach in an ADR process is more informal, less confrontational, and more consensual than that of the standard IRB tribunal process detailed below. It is normally a private hearing, and it usually involves an in-person ADR conference where the following people will be present:

  • Dispute Resolution Officer or DRO: a trained official who is knowledgeable about sponsorship appeal issues.
  • Minister’s Counsel: they represent the immigration authorities and will argue In favour of the IRCC’s decision to refuse your sponsorship.
  • Appellant and Appellant’s counsel (if you have one): you are the appellant and you may choose to have counsel represent you, at your expense.
  • In about half the cases referred to an ADR process, an oral hearing will not be held often because the IRCC allows the appeal to go forward. Sometimes this is also due to the appellant withdrawing the appeal.

 

Administrative Tribunal Process:

This process is similar to the process involved in a court but less formal than a court case. It is based on Canadian law, specifically the Immigration Refugee and Protection Act, and is dedicated to ensuring reasoned, efficient, and fair decisions. It involves similar but more people than those in the ADR process, and takes place at the IAD:

  • Member of IAD: this is the official who will decide your appeal. They will be seated at the front of the hearing room where your appeal will be heard.
  • Appellant: you are the appellant who is appealing the IRCC’s refusal to accept your sponsorship application.
  • Appellant’s counsel: you may wish to have counsel to represent you at the hearing at your expense.
  • Minister’s counsel: this is an official, often from the Canadian Border Services Agency, or CBSA, who is there to defend the government’s case for refusing your application. They will question you the appellant, and any witnesses that may be requested by you or the Minister’s counsel, and they will argue against your appeal. Because of this, you may find it helpful to have counsel at your appeal hearing.
  • Witnesses: any witnesses brought by you or the Minister’s counsel to testify will be present.
  • Members of the public, including the media, are also allowed to attend. In other words, it will be a public process.

 

Scheduling your Appeal Hearing

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You the appellant, and your counsel if you have one, will receive a notice from the IAD to appear for a scheduling conference, or what is called Assignment Court. You must ensure you are at the given location at the correct time and date which will be in the notice you receive. An IAD Member will be there, and will ask you questions to ensure that your case is ready to be scheduled. It the IAD Member is convinced your case is ready to be scheduled, you will be given a time and date for your appeal hearing.

If you must reschedule your appeal hearing date and time, called a postponement or adjournment, you must submit a written application to change the date and/or time as follows:

  • Provide a copy of your application to change the date and time to the Minister’s counsel.
  • Provide a copy of your application to the IAD Registry office where you sent your original application for an appeal, along with a statement detailing when and how you informed the Minister’s counsel of your postponement.
  • In the application, which can be written in the form of a letter, you must:
    • State why you need to change the date or time of your hearing.
    • Indicate whether the Minister’s counsel agrees with your request.
    • Give 6 new dates on which you will be available, and that have been previously cleared by you with the IAD Registry Office. Thus, you must first contact the IAD Registry Office to see what dates are available and then choose 6 dates that you are sure you will be available on.
    • You must ensure that the IAD Registry Office receives your written application for postponement at least 3 working days before the original date of the appeal hearing. 

 

Documentation

Spousal Sponsorship Appeal

To win your appeal, it is your responsibility, and your counsel’s, to show that IRCC’s refusal to approve your sponsorship application is wrong in law, or wrong in fact. It is your responsibility, and your counsel’s if you have one, to show that your appeal should be allowed and should not be dismissed. Documentation will be key in proving your case.

For example, if you have applied to sponsor a spouse, and you are appealing a refusal of that sponsorship application, you will have to show that your marriage is genuine and legal. In the case of marriage, you will not be able to appeal on compassionate and humanitarian grounds. Any documentation that proves your marriage is legal and genuine should be used by you, and your counsel if you have one, at the hearing. This can include the following:

  • Expert evidence by a lawyer, for example, of the marriage laws in the country in which you and your spouse were married.
  • Any official marriage certificates or other official documents witnessing the marriage.
  • Letters, photographs, videos, passports, airline tickets, utility bills, receipts for gifts or money sent by either spouse.
  • You must make 2 copies (aside from the originals) of any documents you plan to present as evidence at the hearing. 1 copy must be sent to the Minister’s Counsel and the other copy must be sent to IAD Registry Office, along with a statement of how and when you sent the other copy to the Minister’s Counsel.
  • These copies of the documents you will be presenting at the hearing must be received no later than 20 days before the date of the appeal hearing. Remember to bring the original copies of the documents, if possible, to the hearing.
  • The Minister’s Counsel must provide you with the appeal record: this is the list of any documents related to your case held by IRCC and the CBSA. The Minister’s Counsel must also inform you no later than 20 days before the hearing of any other documentation he or she will be presenting. You may then provide documentation in response to the additional documents that the Minister’s Counsel will be presenting. These documents have to be received by the Minister’s Counsel and the IAD Registry no later than 10 days before the appeal hearing.
  • Any documents not in English or French must be translated and sent along with the translation, and a translator’s declaration that includes:
    • the translator’s name;
    • the translated language, and
    • a statement signed by the translator declaring that the translation is accurate.

 

Witnesses

You may bring witnesses to testify at your hearing, in person or by phone in some cases, but you must inform the IAD and the Minister’s counsel in writing at least 20 days before the hearing date. You must provide them the following information:

  • witness’s contact information: address, phone, and fax if available;
  • how long the testimony will take;
  • the nature of your relationship with the witness;
  • in the case of expert witnesses, the expert witness must provide a report with their qualifications and a brief summary of the evidence they are to present.

To ensure that your witness appears at the hearing, you may request a summons, an order to appear at the hearing, from the IAD. Contact the IAD Registry Office for more details on how to obtain a summons for any of your witnesses. Remember, it is your responsibility to ensure that your witnesses appear at the hearing on the correct date and on time.

If a witness needs an interpreter, because they cannot speak English or French, then you must contact the IAD at least 20 days before your appeal hearing date by notifying them in writing that your witness will need an interpreter as well as specifying what language and/or dialect they will be speaking. The IAD will provide you with an interpreter at no cost to you.

If your sponsored family member or any witness is in another country, then you may have them testify by phone. You must ensure that they will be available to testify at the local time that corresponds to the time of the hearing in Canada, as well as on the correct date. You must pay for the call, and must therefore bring an international calling card with at least 2 hours of prepaid credit on it, or it will not be accepted at the hearing.

 

What Happens at the Hearing?

The actual hearing is a process with several stages:

  • Your testimony: you will first affirm that you are telling the truth to the IAD Member who is presiding over the hearing. You may swear an oath if you wish, on any holy book that you choose to swear your oath on. You will then answer questions from the IAD Member as well as tell the IAD Member what information you think is most important to your appeal. The Minister’s counsel will also ask you questions on any evidence that you present at the hearing. If you have counsel, they may answer questions on your behalf.
  • Witness testimony: in general, the witnesses will await their turn in a separate waiting room and only appear in the hearing when they are to give evidence. You may ask the witness questions, your counsel may do so, or either of you may ask the IAD Member to question the witness. The Minister’s counsel will also question your witness, as well as bring forward their own witnesses. You have the right to question any of the Minister’s Counsel’s witnesses.
  • Arguments: you or your counsel will be asked by the Member to give your arguments, which are the reasons why you think your appeal should be allowed to go forward. The Minister’s counsel will also be asked by the Member to state whether they think you have shown that your appeal should go forward. You will then be asked to respond to the submission of the Minister’s counsel.
  • Decision: the IAD Member may give a decision on your appeal at the hearing, as well as giving reasons for the decision. Or, the Member may inform you that the decision, along with the reasons for the decision, will be sent to you by mail, no later than 90 days after the date of the hearing.

 

After the Hearing

If the appeal is allowed that means that the original decision refusing your Family Sponsorship will be set aside. IRCC is bound by the IRB’s decision, and must resume processing your application. IRCC may, however, refuse your application on other grounds and this new refusal may be appealed by you to the IAD.

As well, the Minister, through his counsel, may apply to the Federal Court of Canada for a judicial review of the IRB’s decision. This is called applying for leave, or permission from the court, for a judicial review. The Federal Court will then either dismiss the application for judicial review, or return the case to the IAD for what is called a re-hearing.

What all this means is that the immigration authorities, through the Minister of Immigration, Refugees and Citizenship Canada and his or her officials, have a number of avenues to defend the immigration authorities’ refusal of your original Family Sponsorship application. While the objective of the IAD is to render decisions fairly and quickly, an appeal can sometimes be a lengthy and costly, if counsel is involved, process. You must be patient and well prepared to ensure you have the best possible chance of your appeal being allowed to go forward.

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