How to Prepare for your Spousal Sponsorship Appeal

 In Spousal Sponsorship

HOW TO PREPARE FOR YOUR SPOUSAL SPONSORSHIP APPEAL

By: Jatin Shory

Preparing for a spousal sponsorship refusal appeal at the Immigration Appeal Division can be an intimidating task. There are several procedural rules, deadlines, and document requirements that often go missed when preparing a case. We have seen many Appeals get refused at the Immigration Appeal Division simply due to clients being unprepared. As such, I have prepared some tips to help those preparing for their hearing on things to keep in mind. 

1.    DEADLINES

Remember, you have 30 days from the date of being issued notice of the refusal to file your appeal. Often, this information is provided to the Sponsor. The Appeal is from the perspective of the Sponsor. 

The Minister has 120 days after receiving notice to provide you and the tribunal the Minister’s Record (also known as the “blue book”). 

As of the rules today, you have to submit your documents and evidence 20 days before your hearing date (The “Appellant’s Record”).  

2.    THE APPELLANT’S RECORD

In preparing for your case, we often create what is known as the “Appellant’s Record.” This is an organized document that typically contains the following items:

  • Coversheet
  • Index
  • Legal submissions
  • Affidavits
  • Documents in support of the case including (where applicable):
    • Reports and articles from third party sources, for example: 
      • Medical reports
      • Country conditions evidence
    • Letters of support 
    • Other documents that may go to supporting your position against the issues raised at appeal

Make sure you review the Minister’s Record carefully. There is no reason to re-submit documents already provided in the Minister’s Record. Additionally, when preparing the Appellant’s Record it is very important to present an organized document. There is nothing more frustrating at the Appeal if the decision-maker needs to sift through hundreds of documents to find evidence in support of the points you are trying to make – it can become frustrating for everyone and negative for how your Appeal is treated. 

3.    THE HEARING AT THE IMMIGRATION APPEAL DIVISION

The hearing is set up like a cross examination. When you enter the tribunal hearing room, the process will begin with your lawyer asking you a number of questions in an attempt to clarify your position and address the issues raised in the Minister’s Record. This will follow with the Minister’s Representative doing the same. After your lawyer has a chance to reply. The decision-maker may ask questions in the middle of the matter, or at the end. Once your questioning is completed, the same process is followed with respect to your overseas spouse. 

Most hearings are granted 7 hours in allotted time. However, typically these hearings take about 4-5 hours to complete. 

4.    WITNESSES

You are welcome to bring witnesses to the hearing and enter their testimony at the hearing. However, be careful on whether the witness’ testimony is necessary or whether an affidavit from them is enough.

5.    WHAT HAPPENS IF MY APPEAL AT THE IMMIGRATION APPEAL DIVISION IS REJECTED?

Simply put, if your Appeal is rejected you typically only have recourse to the Federal Court of Canada. You can re-apply to sponsor your spouse for permanent residency if you choose to, but understand that if the application is refused again, there is a strong likelihood that you will not be able to access the Immigration Appeal Division a second time around. This is due to a legal principle called res judicata (“a matter that has been adjudicated by a competent court and may not be pursued further by the same parties”).

It is strongly recommended that you explore whether Federal Court proceedings are necessary in this case as this is typically a route to challenge the decision and seek a reconsideration by a different decision-maker. 

 

 

*Disclaimer: The blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of the blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer and use your own good judgement before choosing to act on any information included in the blog. If you choose to rely on the materials, you do so entirely at your own risk.

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