)

I. INTRODUCTION

SPOUSAL SPONSORSHIPS

)

Family reunification is one of the primary objectives of Canada's Immigration and

Refugee Protection Act l (the "Act"). One way that this objective is realized is through the policy

permitting the sponsorship of members of the family class for pennanent residence in Canada.

Family class immigration is one of the two main "immigration" aspects of the Act, the other one

being economic class immigration (comprising federal skilled workers, investors, entrepreneurs,

the Canadian Experience Class and liveRin caregivers, as well as provincial nominees). The third

major component of the Act is in relation to refugee protection.

While all immigration matters have the potential to he life-altering (because they involve

the fundamental interest of whether or not someone will be pennitted to be in Canada), the

interests at stake in family class immigration can be seen as among the most important: whether

or not people with family connections will be allowed to live their lives together.

The type of family class sponsorship likely to be encountered most commonly by lawyers

is the spousal sponsorship application. The reason for this is primarily due to processing times,

because applications of other eligible "members of the family class" are not given as high a

priority as spousal sponsorships, and as such, processing times can be quite lengthy. For

example, crc reports that in 2007, 80 percent of parent and grandparent family class permanent

resident applications are finalized within 21 months across all visa posts, with some posts

reporting much longer times, in some cases over 60 months (5 years). The processing of other

"members of the family class" is slightly faster. For the same year, CIC reports that 80 percent

of spousal sponsorships were finalized within 8 months, which was similar to the sponsorship of

dependent children. The same percentage of provincial nominee applications were finalized

within 11 months. Perhaps due to these processing time differentials, people seeking to bring

parents and grandparents to Canada seek alternatives to family class sponsorship, such as

economic class immigration. In other words, aside from spousal sponsorship (which is given

~ .. ) I S.C. 2001, c. 27, s.3.1(d).

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priority processing), family class immigration is not necessarily the best option to obtain status in

Canada for people who may qualify to immigrate in the economic class. Naturally, advising

clients on processing times is a difficult endeavour, given that the processing of applications is

outside of the lawyer's control. However, it remains a key aspect of the immigration experience

for most applicants and must be factored into the assessment of each application.

As in most areas of immigration law, the role of lawyers in the preparation of spousal

sponsorship cases can be conceived as providing a first-level screening of the application for the

client. Such review is valuable if the lawyer is aware of some of the more common issues that

arise in relation to applications, as based on the lawyer's advice, the client will be able to submit

a complete, and more convincing application after the review has been completed. One of the

primary benefits of the review is to ensure that all necessary documentation is included, as

incomplete applications will either be returned to the applicant or will result in delays as the

immigration officer will be required to request additional supporting documentation.

As spousal sponsorship is likely to be the most common family class application

encountered by lawyers, and can also be the most challenging from a legal perspective, this

paper focuses on spousal sponsorship. This paper provides a brief summary of the law

governing spousal sponsorship, including the means of challenging refusals of the issuance of

pennanent resident visas by appeal to the Immigration Appeal Division of the Immigration and

Refugee Board (the "IAD,,). 2

Legislation and Regulation Citing Convention

The statutory references in this paper follow the convention adopted by Citizenship and

Immigration Canada ("CIC") when referring to the Act and the Immigration and Refugee

Protection Regulations (the "Regulations,').3 Sections of the statute are preceded by "A", and

2 Because of the importance of family sponsorship applications, it is one of the few areas in immigration law inwhich Parliament has provided for a right of appeal from the negative decisions of the visa officers processing thecases. In most other areas of immigration law, the visa officer's, or other decision maker's, decision is final, subjectonly to the possibility ofan application for leave to begin a judicial review application in the Federal Court.3 SORJ2002-227, s.130(1) )

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) sections of the regulation are preceded by a capital "R". For example, subsection 36(2) of the

Act is referred to as A36(2), and section 20 of the Regulations is referred to as R20.

II. Overview of the Spousal Sponsorship Process

Obtaining permanent residence for a person, as a member of the family class, is a two­

stage process involving I) an "application to sponsor" and 2) the ensuing "application for

permanent residence," The application to sponsor, in most cases, is filed with the Case

Processing Centre in Mississauga, Ontario ("CPC - Mississauga") and is accompanied by the

permanent residency application for a member of the family class, such as a spouse. The sponsor

must be a Canadian citizen or permanent resident who wants their spouse to obtain pennanent

residency status in Canada, pursuant to R130. At CPC - Mississauga, the focus is on eligibility

of the sponsor to make the sponsorship application, pursuant to R133. The eligibility criteria is

described below.

)

,)

Once the sponsorship application has been decided, there are three possibilities. The first

is that the application is approved, and CPC-Mississauga will forward the file (which as noted

above already includes the application for pennanent residency) to the overseas post for the

processing of the application for pennanent residency as a "member of the family class." If the

application is refused, the sponsor has the election (made at the time of the application to CPC ~

Mississauga) of having the file returned to him or her, or alternatively of proceeding with the

application for permanent residency in any event. The reason for this election is that sponsors

have the right to appeal a negative decision refusing to issue a permanent resident visa to the

sponsored spouse (assuming that they have been found by the immigration officer to be a

member of the family class) [A64].

As further described below, the appeal is to the lAD, which in some cases has equitable

or discretionary jurisdiction to allow an appeal of a refusal that is otherwise correct in law [A

67(l)(c)]. In other words, the lAD can allow an appeal from a refusal, which was based on the

sponsor's properly-detennined ineligibility to sponsor. One example of a case where this might

happen is if the sponsor was found to be ineligible to sponsor due to having been in receipt of

social assistance [R133(l)(k)]. If the sponsor's financial situation has improved during the

PRACTICAL ISSUES IN IMMIGRATION LAW April 2009

4

processing of the application, such that he or she is no longer in receipt of social assistance, this

is legally in"elevant to the application. However, the change in circumstances would be relevant

to the lAD's discretionary jurisdiction.

As noted above, once the sponsorship application has been assessed, the process moves

to the application for permanent residence, which is processed by the immigration section of the

Canadian embassy or consulate responsible for the applicant's cauntly of nationality.

Altematively, the applicant may file their application to the post responsible for processing

applications from the country where the applicant has been "lawfully admitted for a period of at

least one year" [RIl]. For those lawfully admitted to Canada for a period of at least one year,

the most common place of application is to the Canadian Consulate General in Buffalo, New

York, which is the only Consulate in the United States that accepts permanent residency

applications (although other Consulates may become involved in the processing of applications

once filed).

At this stage of the process, the focus is on whether the applicant tmly is a "member of

the family class." This involves assessing the family relationship claimed, both for biological

relationships, where DNA testing may be required to establish a parent-child relationship, as well

as non-biological relationships, where the "genuineness" of the relationship will be at issue. In

the case of spousal sponsorships, it is at this stage that the immigration officer will consider

whether the applicant is a spouse, common-law partner or conjugal partner, having regard to the

"bad faith" provision of the regulations [R4], discussed below. As in all immigration

applications, immigration officers are required to also assess the general admissibility of the

foreign national applicant [A34 to A42].

This two-stage scheme accords with one of the core principles of the Act, namely that

applications for pennanent residency be made from outside of Canada [All].

A. Spouse or Common-law Partner: In-Canada Class

In the past, if a spouse was living in Canada without immigration status, they could not

apply fOf pennanent residence from within Canada, unless they obtained an exemption from the

PRACTICAL ISSUES IN IMMIGRATION LAW

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) requirement to apply from outside Canada for humanitarian and compassionate reasons under

A2S.

On February 18, 2005, the Minister of Citizenship and Immigration announced that

spouses and commollwlaw partners in a genuine relationship with a Canadian citizen or

permanent resident. even if "out of status" in Canada, could apply for pellnanent resident status

from inside Canada. The new policy is, in essence, a formalization ofa category of humanitarian

and compassionate consideration, which recognizes that in most cases Canada's policies should

not separate spouses or common-law partners in genuine relationships.

From a practical perspective, there are several things to note about applying for pelmanent

residence as a member of the spouse or commonwlaw partner in Canada class:

)

\ )

1. There is no right of appeal from a refusal of an in-Canada application, and hence, there is

no ability to access the discretionary jurisdiction of the lAD in the event of a refusal.

This is because the in-Canada application is not an application for a permanent resident

visa but rather for pennanent resident status. The Act only provides a right of appeal in

respect of the former, not the latter [A 63(1)].

2. An in-Canada spousal sponsorship application will not result in defen-al of removal

proceedings against the sponsored spouse. However, CIC and Canadian Border Services

Agency ("CBSA") have adopted a public policy that may result in a deferral of removal

in certain cases, which can be reviewed at Appendix H of CIC's Operations Manual IP-8

"Spouse or Common-law Partner III Canada class," available at

http://www.cic.gc.ca/english/resources/ manuals/ip/ip08-eng.pdf. The application IS

processed at the Case Processing Centre - Vegreville and/or a CIC local office in Canada

and not at CPC - Mississauga.

3. The applicant must be in Canada at the time that the application is finalized. As such,

applicants who may need to leave Canada. and who might not be allowed back into the

country (for example, if they are required to obtain a visa to do so). should consider

applying from outside of the country.

PRACTICAL ISSUES IN IMMIGRATION LAW Apl'il2009

6

4. Making the application for permanent residence in the Spouse or Common-Law Partner

in Canada class does not confer any temporary resident status in Canada, and as such the

applicant cannot work or study until such time as the application is "approved in

principle" by cpe - Vegreville (which typically takes about 6 months), at which time the

applicant can apply for an open work pelmit pursuant to R207. Unless the applicant is

able to obtain a work pennit in some other fashion, there will he a considerable period of

inactivity, which may put significant strain on the relationship with the sponsoring

spouse.

Based on all of the above, it is important to remember that it mayor may not always be in

the best interests of the applicant to apply from within Canada.

B. Who May Act as a "Sponsor"?

A person is a sponsor "within the meaning of the regulations'" as the phrase is used in

relation to the ability to appeal on humanitarian and compassionate grounds [pursuant to A65], if

they meet the criteria outlined in R130, which requires that the individual must be a Canadian

citizen or pelmanent resident who:

• is at least 18 years of age;

• has filed a sponsorship application in respect of a member of the family

class; and

• resides in Canada. [R130(1)]

Note: A Canadian citizen who does not reside in Canada may sponsor an

application for their spouse, common law partner, conjugal partner or dependent

child who has no dependent children if the Canadian will reside in Canada when

the applicant becomes a pennanent resident. [R130(2)]

The above criteria must be satisfied throughout the process of processing the entire

application [R133(1)(a)], failing which an immigration officer cannot issue a visa or other

)

PRACTICAL ISSUES IN IMMIGRATION LAW April 2009

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7

document to the applicant [All(2)]. Failure to satisfy one of the above requirements cannot he

overcome by the lAD's ability to grant discretionary relief. 4

In addition to the basic requirements to sponsor, the sponsor must also meet additional

criteria, which the lAD may exercise its discretionary jurisdiction to relieve against:

1. The sponsor must intend to fulfill the obligations in the sponsorship undet1aking

[R133(I)(b));

2. The sponsor must not be subject to a removal order [R133(1)(c)]. Further, where a report

against a pennanent resident is made under section 44(1) of the Act, or if an application

is made under the Citizenship Act for revocation of citizenship with respect to any person

who has given an undertaking, no determination can be made with respect to whether or

not the person is a sponsor until a final determination has been made with respect to any

of these matters [Rl36].

3. The sponsor must not be detained In a penitentiaty, jail, refonnatory or prison

[R133(I)(d)];

4. The sponsor must not have been convicted of an offence of a sexual nature against any

person or an offence that results in bodily hann to a relative of the sponsor including a

dependent child or other family member, a relative of the sponsor's spouse, common-law

or conjugal partner (unless acquitted or pardoned, or at least 5 years have elapsed since

completion ofthe sentence) [Rl33(l)(e)];

5. The sponsor must not have been convicted outside Canada of an equivalent offence to (e)

(unless acquitted, or 5 years have elapsed since sentence and rehabilitation is shown)

[R133(I)(f)];

6. The sponsor must not be in default of any undertaking or any support payment

obligations ordered by a court [Rl33(1)(g)] or be an undischarged bankrupt

[R133(I)(i))';

) 4 See Effat v. M.CI. (lAD TA2·20734), Hoare, June 24, 2004.

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7. The sponsor must not be in default of repayment ofa debt referred to in section 145(1) of

the Act [RI33(1)(h)];

8. With certain important exceptions involving spouses and dependent children, the

sponsor's income for the year preceding the sponsorship application, must be at least

equal to the "minimum necessary income" [R2 "minimum necessary income"], as

demonstrated by a Canada Revenue Agency Notice of Assessment [RI34], or othelwise.6

The minimum necessary income requirement does not apply if the sponsored person is

the sponsor's spouse, common-law or conjugal partner with no dependent children; a

dependent child who has no dependent children; or a dependent child ofthe sponsor who

has no dependent children or a person referred to RI17(l)(e) or (g) [R133(4)];

9. The sponsor must not be in receipt of social assistance other than for a disability

[R133(I)(k)].

It is important to also note that a Canadian citizen or pennanent resident can sponsor a

person as their spouse if they have had a legally valid civil marriage, which must be valid both in

Canada and in the jurisdiction in which the marriage took place [R2 "marriage"]. In this regard,

the Act does not take note of whether a marriage is of same or opposite-sex, in keeping with the

definition of marriage in the Civil Marriage Act, S.C. 2005, c. 33, which defines "marriage" as

"the lawful union of two persons to the exclusion of all others." After the enactment of the Civil

Marriage Act, CIC adopted an interim immigration policy, which did not recognize same-sex

marriages which took place outside Canada. After a motion in the House of Commons Standing

Committee on Citizenship and Immigration, the committee voted to recommend that the

government do this. In February 2007, the CIC website was updated to reflect that the policy has

been updated. As of March, 2009, same-sex marriages that took place in the following

jurisdictions should be recognized:

5 These requirements do not apply in relation to cases subject to Quebec's An Act /'especting Immigration toQuebec, R.S.Q., c. 1-0.26 The sponsor can prove their income otherwise than by providing the Notice of Assessment, but the burden of sodoing falls on the applicant [Singh Chahal. Ba/winder v. MC./. (F.e., no.IMM-1423-07), Barnes, September 24,2007; 2007 FC 9].

PRACTICAL ISSUES IN IMMIGRATION LAW April 2009

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)

, )

9

• British Columbia (on or after July 8, 2003)

• Manitoba (on or after September 16,2004)

• New Bl1UlSwick (on or after July 4, 2005)

• Newfoundland and Labrador (on or after December 21, 2004)

• Nova Scotia (on or after September 24. 2004)

• Ontario (on or after June 10,2003)

• Quebec (on or after March 19,2004)

• Saskatchewan (on or after November 5, 2004)

• Yukon (on or after July 14,2004)

• all other provinces or territories (on or after July 20, 2005)

• Belgium

• The Netherlands

• Norway

• South Africa

• Spain

• The State of California (between June 16,2008 and November 5, 2008)

• The State of Massachusetts

• The State of Connecticut

In addition to meeting the definition of marriage, the marriage must he valid in the sense

that it complies with the formalities of the ceremony as prescribed by the jurisdiction in which it

took place (fonnal validity) and also has "essential validity." Essential validity includes matters

relating to consent to marry, existing prior marriage, prohibited degrees of relationship, non­

consummation of the marriage, fraud, and duress.

PRACTICAL ISSUES IN IMMIGRATION LAW April 2009

c.

to

The Permanent Residency Application as a "Member of the Family Class" )

As noted above, the permanent residency application must generally be included with the

application to sponsor at the time it is filed with epe - Mississauga, which will result in the two

applications being filed concllO"ently with the overseas post (by being transferred directly from

epe - Mississauga), which satisfies the requirement that the permanent residency application be

preceded by, or accompanied by, the sponsorship application [RIO(4)].

A crucial distinction in the Act in relation to family class applications, and one that is not

immediately intuitive, is the distinction between a "member of the family class" and a "family

member." Pursuant to R117, members ofthe "family class" include:

• a sponsor's spouse, common-law partner or conjugal partner;

• a dependent child of the sponsor;

• the sponsor's mother or father;

• a person the sponsor intends to adopt; and

• other specified relatives of the sponsor.

The best way to illustrate this distinction between the "family class" and "family

member" is by way of an example: assume that Joe Canadian is married to Samantha American.

Samantha American has a dependent child Susie, from a prior relationship, whom Joe has not

adopted. Joe and Samantha also have a child together. Assuming that Joe and Samantha's

marriage is legal, and genuine (both discussed below), and that Joe is a "sponsor" within the

meaning of R130, Joe Canadian has the ability to sponsor Samantha American to become a

permanent resident as a "member of the family class." As noted above, if he does not meet the

requirements ofR!33, his application may be refused but could be allowed on appeal to the lAD.

However, Susie is not "a member of the family class" in relation to Joe Canadian under the

criteria in R117, but, Susie will still be able to become a permanent resident, as she is

Samantha's "family member" [Rl(3)J.

)

PRACTICAL ISSUES IN IMMIGRATION LAW April 2009

)

)

)

II

In other words, the Act is designed around the immigration of family units, not

individuals. Where an individual meets the criteria of one of the classes to obtain a permanent

resident visa (i.e., the family class or the economic class), that individual's family members (as

defined) will also obtain a pelmanent resident visa [R70(4)]. Joe and Samantha's child is likely

a dual Canadian-American citizen (Canadian by virtue of either birth in Canada or by birth

abroad to a Canadian citizen, and viceRversa for American citizenship) and as such, is not

included in Samantha's application for permanent residency as an accompanying family member

even though the child would meet the definition ofa "family member."

Spouses fall under a special category, which is exempt from some of the general

requirements of Canadian immigration law, such as certain kinds of health inadmissibility and

the minimum income requirements. In addition, as noted above, spousal sponsorships

applications are given priority processing. It is important to note, however, that there is no

longer any provision for the sponsorship of fiances in Canada's immigration legislation.

Therefore, a fianceee) of a Canadian citizen or permanent resident must get married before the

immigration process takes place, unless they qualify as a common-law or conjugal partner.

The Act also imposes additional limitations on the kinds of spousal relationships that will

qualify someone as being a "member of the family class." An individual cannot sponsor a

person as their spouse if:

• The foreign national is nnder 16 years of age [RI17(9)(a)];

• The sponsor has an outstanding undertaking in relation to a spouse, common-law partner

or conjngal parlner [RRII7(9)(b)];

• The sponsor and applicant have lived separate and apart for at least one year and are the

common-lawaI' conjugal partner of another person, or the person they want to sponsor is

the common-law partner of another person or the conjugal partner of another sponsor

[R1l7(9)(c)]; or

• The sponsor previously became a pelmanent resident, and at the time the applicant was a

non-accompanying family member who was not examined [RI17(9)(d)].

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A Word on R1l7(9)(d)

As lawyers are likely to encounter cases dealing with the effect of RI17(9)(d), some

additional attention is warranted. ere describes the purpose of the exclusion provisions,

including RI17(9)(d) as follows:

The intent of RI17(9)(d), R1l7(1O) and RI17(11) is to ensure that persons whomthe sponsor made a conscious decision to exclude (either by not declaring and/ornot having the persons examined) from their own application for pennanentresidence cannot later benefit by being sponsored by this same person as amember of the family class. 7

Sponsorship of a foreign national as a family member may have significant immigration

benefits, as compared with the inclusion of that foreign national in the original pennanent

residency application. The clearest example relates to health inadmissibility lUles, which is best

explained by use of an example. Let's assume that Bob French is immigrating to Canada as a

provincial nominee. He is qualified, but he has a son that has a serious disability that would

create an excessive burden on the Canadian health care system, such that the son would be

inadmissible to Canada pursuant to A38. Bob knows that disclosing the existence of his son will

render the entire family inadmissible to Canada pursuant to A42. Accordingly, he does not

disclose the existence of his son in his application for pennanent residency, and eventually

obtains pennanent residency, leaving his son in the care ofa third person in France. Bob plans to

sponsor his son as a dependent child at a later date, hoping to take advantage of an exception to

the "excessive demand" inadmissibility in A38(1)(c). which is available for dependent children

of a sponsor. Clearly, this scheme is a conscious decision to avoid the intention of the Act in

relation to preventing the entry of foreign nationals who pose an excessive demand on health or

social services.

The penalty that would be paid by Bob in this example is that he will never be allowed to

sponsor his son as a member of the family class, as a result ofRl17(9)(d).

7 Overseas Processing Manual, OP~2 (Processing Members of the Family Class"). )

PRACTICAL ISSUES IN IMMIGRATION LAW Apri' 2009

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CIC's inlerpretation of Rl17(9)(d), and of Ihe only melhod of allowing the sponsorship

of the relative (application for humanitarian and compassionate consideration under A25), is

found in the manual OP2 (Processing Members of the Family Class) at section 5.10:

General

· The onus is on the client to understand their obligations under the law. Theinformation guides included with application kits and visa issuance letters giveclear infOimation on the need to declare and have examined all family membersincluding new family members.

· The exclusion found in Rl17(9)(d) exists to encourage honesty and preventapplicants from circumventing immigration rules. Specifically, it exists to preventapplicants from later being able to sponsor otherwise inadmissible familymembers under the generous family class sponsorship rules when these familymembers would have prevented the applicant's initial immigration to Canada foradmissibility reasons (i.e., excessive demand),

The application of humanitarian and compassionate considerations maynonetheless be appropriate in cases that are exceptional and deserving from areasonable person's point of view.

Casc~specific factors

Canada's continuing obligations under the Convention on the Rights of theChild require that the Department consider the best interests of a child directlyaffected by the application whether they are explicitly mentioned by the applicantor are otherwise apparent. (For more infonnation on the application of the policypertaining to the best interests of the child, see OP4, section 8.3.)

· Where family members were declared but not examined and it is clear that theapplicant/sponsor made their best efforts to facilitate this examination and thatthis lack of examination was beyond the applicant's/sponsor's control,considering the use of H&C factors may be appropriate.

PRACTICAL ISSUES IN IMMIGRATION LAW April 2009

III.

14

Challenging Refusals in Family Class Cases

Decisions by visa officers on family sponsorship applications have a dramatic impact on

both the sponsor and the applicant's life. Perhaps because of this reality, Parliament provided for

a right to appeal certain decisions made by immigration officers to the lAD tribunal. The right of

appeal is found in A63 and reads as follows:

63. (1) A person who has filed in the prescribed manner an application to sponsora foreign national as a member of the family class may appeal to the ImmigrationAppeal Division against a decision not to issue the foreign national a permanentresident visa.

There are several things to note about the right of appeal. First, it is the sponsor that has

the right of appeal, not the foreign national applicant. Second, the right of appeal is with respect

to the decision not to issue a permanent resident visa. As noted above, it is because of this

language that the lAD has decided that there is no right to appeal from the refusal of an in­

Canada application (the main example being the new "spouse or common-law partner in Canada

class" applications). The reason for this is that an in-Canada spousal application is not an

application for a permanent resident visa, but rather an application for permanent resident status.

The only option in such cases is to apply for leave to commence a judicial review application in

the Federal Court of Canada, which does not have the ability to exercise discretionary

jurisdiction. For this reason, in a case where it will be necessary to resort to the discretionary

jurisdiction of the lAD, applicants should be advised to apply from outside of Canada.

IV. Appeals from a Refusal to Issue a Permanent Resident Visa

Under A63. sponsors can appeal against the decision to refuse a permanent resident visa

to the sponsored applicant. When a sponsored application is refused, the sponsor has the right to

appeal the refusal to the lAD on any ground that involves a question of law or fact or mixed law

and fact, or on the ground that there exists humanitarian and compassionate (H&C)

considerations that warrant the granting of special relief. 8 However, A65 states:

BSee Lome Waldman, Immigration Law and Practice, 2nd ed. (Markham: LexisNexis, 2007) vol. 2 at 10.195. )

PRACTICAL ISSUES TN IMMIGRATION LAW April 2009

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15

In an appeal under subsection 63(1) or (2) respecting an application based Oll

membership in the family class, the Immigration Appeal Division may notconsider humanitarian and compassionate considerations unless it has decidedthat the foreign national is a member of the family class and that their sponsor is asponsor within the meaning of the regulations.

Therefore, if the applicant does not fall within the definition of the family class, or if the

sponsor does not fall within the definition of a sponsor, the lAD cannot exercise its humanitarian

and compassionate jurisdiction.

Even though sponsors have a statutory right of appeal pursuant to A63, there are some

limitations. Under A64, there is no right of appeal to the lAD if the applicant is inadmissible on

grounds of "security, violating human or international rights, serious or organized

criminality."[A64(1)J For the purposes of this provision, "serious criminality" refers to a crime

punished in Canada by at least two years' imprisonment, which is a different definition than that

used to determine admissibility per se [A64(2)}.

In 2005, Madame Justice MacTavish in Kang v. Canada (Minister of Citizenship &

lmmigrationl confinned this restriction by ruling that the lAD does not have jurisdiction to

consider the jurisdictional facts related to the detennination that the person was inadmissible

pursuant to A64. In other words, all that is necessary to preclude an appeal is a finding by an

immigration officer of one of the above grounds of inadmissibility - the lAD will not inquire

into whether the person is actually inadmissible. In such cases, the only available recourse to

challenge the decision is by way ofjudicial review (not appeal to the lAD),

The lAD can review questions of fact and law and conduct a hearing de novo.

Immigration appeals are unique because the lAD can consider new issues which were not before

the visa officer and are not bound by legal or technical rules of evidence. The lAD also has

discretion to base a decision on any evidence adduced in the proceedings that it considers

credible or trustworthy in the circumstances [AI75(1)J. 10

, [2005] F.C.I. No. 367 (F.C.).ao See also Valdez, Enrico Villanueva v. Mea. (F.e.T.D. no. IMM-5430-97), Reed, March 12, 1999, where theAppeal Division held they are allowed to make use of newly created evidence in sponsorship cases.

PRACTICAL ISSUES IN IMMIGRATION LAW April 2009

16

In Saskatchewan, lAD spousal sponsorship appeal hearings are typically conducted by

videoconference. The appellant (the sponsor) and counsel, if any, are typically present at a erevideoconference facility in Saskatoon or Regina. The lAD member presides from Vancouver

(current administrative location for the IRB in Western Canada), with counsel for the Minister

present. The applicant, who is typically called as a witness, is presumptively outside of Canada,

and appears by telephone at the expense of the appellant. Ifan interpreter is required, that person

is selected by the lAD and will interpret over the phone. Needless to say, it is often difficult to

coordinate such hearings efficiently!

To allow an appeal, the lAD must be satisfied that:

(a) The decision appealed is wrong in law or fact or mixed law and fact;

(b) There was a breach of natural justice; or

(c) There are sufficient humanitarian and compassionate considerations to warrant

special relief on eqnitable gronnds [A67(1)].

If the lAD allows the appeal, it may either set aside the original decision, substituting

determination that should have been made, or refer the matter back to the appropriate decision

maker for reconsideration.

A. Alternative Dispute Resolution

In addition to the fonnal process of appeal, spousal sponsorship cases are sometimes

appropriate for resolution by the lAD's altemative dispute resolution process. Like other

mediation processes, the lAD process is confidential and informal, designed to allow the sponsor

to explain his or her position face-to-face with an immigration hearings officer (now an officer

from the CBSA). A member of the lAD presides over the mediation session, who takes on the

role of a dispute resolution officer. Because new evidence is admissible in lAD appeals on

spousal sponsorship refusals, this is an opportunity for the appellant to present additional

evidence in an effort to seek an early resolution.

)

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PRACTICAL ISSUES IN IMMIGRATION LAW ApI'il2009

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) Due to the lengthy period of time that it can take to get a hearing in the lAD, the

alternative dispute resolution process makes sense for many applicants who are already frustrated

by having waited a significant period of time to be reunited with a spouse.

V. Succeeding on Appeal

On appeal, in order to qualify to be sponsored as a spouse, the applicant must prove to the

satisfaction or the immigration officer that:

(i) There has been a valid malTiage according to the laws of the country where the man'iagetook place and the laws of Canada (per R2); and

(ii) The relationship is genuine and not entered into primarily for the purpose of gaining abenefit or status under the Act (per R4).

A. Valid Marriage

)

The onus is on the applicant and the sponsor to establish a valid marriage. In order to

prove a valid maniage, the applicant must establish: (a) the capacity of the parties to many; (b)

the fact that they do not fall within prohibited relationships (i.e., consanguinity); (c) the fact that

any previous marriages were properly dissolved; and (d) the fact that, according to the laws of

the country, a valid marriage was performed.

The validity of a marriage under foreign law is a question of fact. Accordingly, evidence

is necessary to prove validity where it is in question. Most commonly, the parties will submit a

legal opinion or other expert report speaking to the law of marriage in the foreign jurisdiction.

Alternatively, if there is some question as to what ceremony was actually perfonned, affidavit

evidence could be provided to establish the facts (either to the visa officer or, on appeal, to the

lAD).

B. Bona Fide Relationship (marriage of convenience)

)

R4 excludes marriages that are "not genuine and entered into primarily for the purpose of

acquiring any status or privilege under the Act." When a sponsor appeals a decision based on

this section, the lAD must consider all of the relevant circumstances together with the reasons

given by the officer for refusing the application. The relevant circumstances are given a broad

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interpretation and include "[e]vidence as to origins of the relationship, the decision to marry, the

marriage ceremony and festivities and, most importantly, the ongoing contact between the

spouses after marriage."l1 The case law indicates that no single criterion is decisive because it is

the interplay of several factors that leads the lAD to a detennination as to the purpose and

intentions of a marital relationship.12 Some of the factors that are relevant are the length of the

relationship, whether it was an arranged marriage, the age difference, the partners' fonner

marital or civil status, their respective financial situation, their public behaviour in relation to the

relationship (in particular, in government filings such as tax returns) their employment, their

family background, their knowledge of one another's histories, their language, their respective

interests, and their immigration histories.

A key issue to understand is the timing of the determination. In this regard, close

attention must be had to the language of the "bad faith" section. R4 reads:

4. For the purposes of these Regulations, a foreign national shall not beconsidered a spouse, a common-law partner, a conjugal partner or an adoptedchild of a person if the marriage, common-law partnership, conjugal partnershipor adoption is not genuine and was entered into primarily for the purpose ofacquiring any status or privilege under the Act.

Because of the use of the conjunctive "and," A4 creates a two-pronged test for a bad faith

relationship: 1) a relationship that is not genuine; 2) a relationship entered into for the purposes

of acquiring status or immigration into Canada. Both must be present in order for the applicant

to not be considered a spouse, common-law partner or conjugal partner.

In relation to the issue that the marriage, common-law partnership, conjugal partnership

or adoption "is not genuine," the use of the present tense indicates that the relevant time may be

the time of the hearing of the appeal. In other words, a relationship correctly refused by an

11 Waldman, supra, note 8 at 10.220; See also Chieu v. Canada (Minister ojCitizenship and Immigration), [2002] 1SCR 84 and Rai v. Canada (Minister ojCitizenship & Immigration) (5 Sept. 1995), Action No. V93·03045 (lmm.Ref. Bd. (App. Div.».12 See Sidhu, Gurdip Singh v. ME.!. (lAD W90-00023), Goodspeed, Arpin, Raybum, September 12, 1990 where thepanel gave little weight to evidence ofdifferences in age and education in view of evidence of other importantfactors in arranging a traditional Sikh marriage.

PRACTICAL ISSUES IN IMMIGRATION LAW April 2009

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immigration officer for not being genuine, may become genuine at the time of the hearing of the

appeal, which would result in the appeal being allowed. 13

The second prong of the test requires consideration of whether the malTiage "...was

entered into primarily for the purpose of acquiring any status or privilege under the Act." This

prong of the test requires consideration of the spouses intentions at the time of the man'iage, first

date of common-law cohabitation or first date of the conjugal relationship. The desire for an

immigration benefit must have been the primary motivator for entering into the relationship. If

obtaining an immigration benefit was one, but not the primary factor, the appeal may be allowed.

When it comes to assessing whether or not the legally valid malTiage is "genuine" or was

entered into primarily for the purpose of an immigration benefit, the evidence of both the sponsor

and the applicant is relevant. 14 It is also important to remember that the onus rests with the

appellant (and the applicant) to prove that the relationship is genuine and not primarily for the

purpose of obtaining an immigration benefit. Counsel for the Minister does not have the burden

on an appeal to the lAD to demonstrate that the visa officer's refusal of an application was

) correct, therefore, the onus is on the sponsor to prove that the applicant is not caught by A4. 15

Oral Evidence

The lAD member and Minister's counsel will want to hear from the appellant, and

wherever possible, the applicant. One of the most important considerations to keep in mind is

that the time set for an oral hearing in front of the lAD is limited to 3 hours. This sets significant

time constraints on what is possible to adduce by way of oral evidence, as well as putting

significant limits on the number ofwitnesses that can be called.

As noted above, the applicant will almost always be outside of Canada and therefore, it is

generally not possible to have the applicant appear in person as a witness. However, evidence of

the applicant's intentions can be provided by calling the witness via teleconference call, or other

documentary evidence by means of letters, photographs, videos, etc. In addition, the sponsor can

13 Donkor v. MG.!., 2006 FC 1089.14 Gavino v. Canada (MC!.) 2006 FC 308.IS See Canada (Solicitor General) v. Bisla, [1994] F.e.J. No. 1785 (T.D.).

PRACTICAL ISSUES IN IMMIGRATION LA W April 2009

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also give evidence to testify about the relationship and their belief as to the intentions of the

applicant. In general. the more that can be proved by way of documentary evidence, the better,

given the practical difficulties of conducting a hearing by teleconference with witnesses from

abroad who may require translation. At best, the process is cumbersome and does not provide a

good platfonu for the lAD member to assess witness credibility, as the member must do so only

by listening to the person's voice - usually in a foreign language.

Documentary Evidence

The documentaly evidence generally presented at hearings to determine the genuineness

of the relationship consists of:

• Evidence of contact between the appellant and applicant both before and after the

man'iage, such as:

a. Phone bills

b. Plane tickets

c. Photographs

d. Letters and e-mails (including proof of delivery, such as postmarks)

• Evidence of contact between the appellant and applicant's relatives, as above

• Monetary support (such as bank remittances or Western Union transaction records)

• Evidence of financial "intenningling," such as:

a. Joint bank accounts

b. Reciprocal beneficiary status on insurance policies, RRSPs and wills

c. Tax return showing status as "married"

• Evidence of the wedding ceremony, such as

a. Photographs (it is best to present only a sample of such pictures, and to indicate

what they show - Le., sponsor's parents and relatives attending the wedding in

India)

b. Bills, to show how much was spent and who paid

c. A guest registry

• Affidavits of family members describing the evolution of the relationship.)

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) Counsel must be aware of the lAD Rules, which set time limits for the submission of new

documentary evidence, and require service on Minister's counsel. Failure to do so can result in

non-admission due to prejudice. In addition, lAD practice directives establish guidelines for the

presentation of evidence.

As the lAD's special relief provisions are dependent on the applicant being found to be a

member of the family class, the lAD's detennination that the applicant is or is not a spouse

(based on R4 or R4.1) will determine whether or not the lAD has jurisdiction to consider

granting discretionary relief, which is dependent on membership in the family class (A65).

VI. The Effect of a Win: Sending Back the File for Continued Processing

A successful appeal results in the application for permanent residency being remitted to

the visa officer for continued processing. The original ground of refusal carumt be relied upon to

refuse a second time unless the immigration officer relies on new material facts [A70].16

)

)

One of the situations in which it may be desirable to raise other issues other than those

specifically identified in the refusal letter is where you are aware of another potential "hiccup" in

the application, not relied on by the immigration officer, which could result in a second refusal,

even if the appeal to the lAD is successful. This is because a successful appeal results in the file

being sent back to the visa post for processing to determine the application on grounds not

included in the appeal. For example, in a marriage of convenience case, an applicant may have

filled out their application forms incorrectly, resulting in what might be seen as a

misrepresentation, which could lead to an inadmissibility finding and refusal. Because this

misrepresentation could surface in the future, you might consider bringing it to the attention of

the lAD, so that it can be "cleared up" through the appeal process, rather than potentially

resulting in a further refusal.

VII. What Happens if the Appeal is Dismissed?

It is possible for individuals to re-apply and possibly have a repeat appeal to the lAD

after a failed appeal. The Act acknowledges that circumstances may change following the first

PRACTICAL ISSUES IN IMMIGRATION LAW Apri/2009

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appeal in relation to financial or medical refusals. The lAD may evaluate new evidence, such as

improved financial or physical health, on a repeat appeal from a second refusal. However,

spousal applications are unique because the evidence must always relate to the intention at the

time the applicant was purported to become a member of the family class. Therefore, repeat

appeals require a more restrictive approach and the lAD can limit unsuccessful appeals through

the doctrines of res judicata 17 and abuse of process. IS It is open to the lAD to apply either or

both doctrines in appropriate cases. 19 Only where there is "decisive" new evidence is a repeat

appeal likely to be heard by the lAD.

As noted above, the genuineness of the relationship has been detennined by the Federal

Court to be a matter assessed in the present, given the wording of R4. This could be used to

argue that a repeat application does not give rise to a res judicata/issue estoppel, given that the

time factor for the assessment of the genuineness of the relationship is different. However, the

Federal Court has confirmed that the "decisive" new evidence test should be applied to limit

repeat appeals notwithstanding this change to the language of the bad faith section.2o

A. Contesting the Decision of the lAD

Under the Act, if a decision of the lAD is negative, A72 provides for the possibility of an

application for leave to commence a judicial review decision to the Federal Court of Canada. On

March 6, 2009, the Supreme Court of Canada held in Canada (Citizenship and Immigration)

v. Khosa21, that the standard of review for such applications is reasonableness, and that the lAO

is entitled to a measure of deference. As long as the lAD's decision falls within the reasonable

range of outcomes, the Federal Court will not interfere.

16 Au v. MG.I.• [2002] F.e. 257 (CA.)17 The res judicata doctrine avoids the potential to have inconsistent decisions in which a previous decision isundermined by a finding on a repeat appeal. There are three requirements for issue estoppeVl'es judicata to apply:(i) that the same question has been decided; (ii) that the judicial decision which is said to have created the estoppelwas final; and (iii) that the parties to the judicial decision or their privies were the same persons as the parties to theproceedings in which the estoppel is raised. See Donald. J. Lange, The Doctrine of Res Judicata in Canada(Bulterworths, Toronto, 2000) at 23.18 Abuse of process is a discretionary principle that is used to bar proceedings that re inconsistent with the objectivesof public policy.19 See M.C.!. v. Sekhon (lAD T99-05069), Sangmuah, March 30, 2001.20 See for example Deuk, Chy v. M.G.I., 2006 Fe 1495.21 2009 see 12.

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Challenging a NonwAppealable Decision

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)

As noted above, the right of appeal to the lAD conferred by A63 is restricted. Appeals

are not possible in respect of the following decisions:

• The decision that a foreign national is inadmissible for security, violating humanor international rights, serious or organized criminality;

• A decision that the foreign national is inadmissible for misrepresentation. unlessthe foreign national in question is the spouse, common-law partner, or child;

• A decision to refuse an in-Canada spousal application for pennanent residence.

In these cases. the only recourse available to the applicant is an application for leave to

commence a judicial review application, a topic which will have to be the subject of a different

paper.

PRACTICAL ISSUES IN IMMIGRATION LAW April 2009

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