Spousal sponsorship appeals: Taking your refused spousal sponsorship application to the Immigration Appeal Division
Immigration, Refugees and Citizenship Canada (IRCC) often issues refusals of spousal sponsorship applications when the overseas visa officer finds that a marriage is either not genuine or was entered into primarily for the purpose of immigration to Canada. In these instances, the issuance of a refusal puts a family into the appeals system. You have 30 days to appeal the refusal to the Immigration Appeal Division of the Immigration and Refugee Board of Canada.
By way of law and procedure, applications to sponsor one’s partner who resides outside of Canada are dictated by section 4 and Part 7 of the Immigration and Refugee Protection Regulations, specifically section 117(1):
4 (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership
(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) is not genuine.
117 (1) A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
(a) the sponsor’s spouse, common-law partner or conjugal partner;
The test is disjunctive, which means that either finding of primary intent or non-genuineness can lead to a refusal. Appeals are considered de novo, which means that he IAD may consider issues which were not before the visa officer. The IAD is not bound by legal or technical rules of evidence and may make its decision based on any credible and necessary evidence. As outlined by the Honourable Justice Sylvie E. Roussel in Al Mousawmaii c. Canada (Citoyenneté et Immigration), 2018 FC 1256 at para 25 when reviewing R4(1):
25 In addition to being disjunctive, these tests also include a temporal distinction. Paragraph 4(1)(a) requires an assessment of the spouses’ intention at the time of the marriage while paragraph 4(1)(b) calls for an assessment of the authenticity of the marriage at the present time (Onwubolu, at paras 13-14; Gill v Canada (Citizenship and Immigration), 2012 FC 1522 at paras 30, 33; Singh v Canada (Citizenship and Immigration), 2014 FC 1077 at paras 6, 26).
When assessing the R4(1)(b) genuineness of a marriage, Khera v. Canada (Minister of Citizenship & Immigration), 2007 FC 632 provides examples of relevant factors in assessing the genuineness of a relationship:
- the length of time the parties knew each other before getting married and any age difference;
- the parties’ formal marital history;
- their respective financial and employment situations;
- family backgrounds;
- their knowledge of one another;
- family connections in Canada; and
- any prior attempts by the sponsored spouse to gain entry into Canada
Refusals can be made for a number of reasons and a review of the Minister’s Record is necessary to assist us in narrowing down the issues. Often, refusals are issued after a visa officer conducted an in-person (and possibly virtual in a COVID-19 world) interview. Clients are typically unprepared or overconfident going into the interview. Preparing for the interview itself can take some three to four hours. Sometimes, the sponsor is not even interviewed, and the decision is based on the primary applicant alone. It is vital that one is prepared adequately for these meetings as the GCMS notes comprise of the only transcript available for review.
When preparing your Applicant’s Record, understanding these legal tests are critical to collecting the right documentation. Appeals are places where you can clear the record and handle any issues from the interview upfront in front of a Board Member. Sometimes, when the issues are relatively simple, an Alternative Dispute Resolution can be scheduled. Have a competent immigration lawyer is absolutely key to preparing the best possible fight. If you are refused, your only option left is to take the matter to the Federal Court of Canada which only further extends the time you are apart from your loved ones.