The first question we often hear when approached by a client who has had their sponsorship application refused is “why?” To understand what may have gone wrong, one area of the law to review is section 4(1) of the Immigration and Refugee Protection Regulations (Regulations):

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.

Although there are a variety of reasons that sponsorships can be refused by Immigration, Refugees and Citizenship Canada (IRCC), this is a common reason – IRCC is simply not convinced that the relationship is genuine and was entered into only for immigration purposes.

It is important to keep in mind that section 4(1) of the Regulations is two-pronged, meaning that IRCC has to be convinced that the relationship is both genuine and was not entered into primarily for immigration benefit. This means that even if IRCC believes that a marriage has become truly genuine over time, the application can still be refused if at the time the couple married, the primary reasons for doing so was to get the sponsored spouse, or applicant, status in Canada.

So, if you do end up with a refusal on this basis, what can be done? If it was an overseas application, then the sponsor may appeal the refusal to the Immigration Appeal Division (IAD). The first step is to file a Notice of Appeal within 30 days of receiving the refusal. This begins the appeal process, which eventually leads to a hearing before the IAD. This appeal is a de novo process, meaning that the Board Member of the IAD who decides the appeal can consider new evidence and testimony. Through the appeal process, IRCC provides the Appeal Record, which should contain a complete copy of the file including all of the forms and supporting evidence filed before the application was refused, the refusal decision itself as well as the Officer’s notes containing the reasons the application was refused. The sponsor, who is the appellant during the appeal process, and the applicant seeking to come to Canada, both have the opportunity to answer questions about their relationship, attempting to convince the IAD Member that the relationship is genuine and was entered into for legitimate reasons. Additional documentary evidence is also filed in advance of the hearing to further substantiate the relationship.

Currently, it can take anywhere from a few months to over a year for a hearing to be scheduled for the appeal. Though with the shift to online hearings, the process can sometimes move quicker as hearings can, in certain circumstances, be scheduled sooner or early resolution can be explored earlier. Luckily, experienced counsel can help you determine if there might be options for early resolution in your case.

If your application was filed in-Canada, or depending on the reason for refusal and where certain inadmissibilities may be involved, then there is no access to the IAD. In this case, you may challenge the refusal to the Federal Court of Canada, which has a more limited jurisdiction and cannot consider new evidence (such as additional proof of the relationship or testimony of the partners in IAD appeals).

Although the refusal of a spousal sponsorship is undoubtedly a major upset, it is important to remember that there may be ways to challenge a negative decision. A representative who regularly handles appeals and court challenges can help you understand why your application was refused and determine the best way forward for you and your family. If your application has been refused and you have questions about the options available to you, feel free to schedule a consultation with our office.

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In Clarke v. Canada (Citizenship and Immigration), 2018 FC 267, the applicant sought judicial review of a decision by the Immigration Appeal Division refusing to allow her residency obligation appeal on humanitarian and compassionate (H&C) grounds. The Applicant is a 34-year-old who is literate and whose first language is English.

The Court acknowledged that, at the outset of the hearing, the IAD member had asked the Applicant if she was prepared to proceed without legal representation, to which she responded in the positive. The IAD member also explained to the applicant how the hearing would proceed and the basic legal framework and analysis when considering H&C factors in a residency obligation appeal.

However, the Court found that, once it became apparent to the IAD member, as a result of certain comments made by the applicant throughout the hearing, that the applicant did not fully appreciate or understand the nature of the legal proceedings, the IAD member’s failure to provide the applicant with another opportunity to retain legal counsel, to advise her of the availability of legal aid, or to advise her that she could still submit additional material once the hearing had ended amounted to a breach of procedural fairness.

While the content of the duty to ensure a fair hearing remains context-dependant and to be determined on a case-by-case basis, this decision signals that there remains an ongoing procedural fairness obligation on the part of decision-makers, throughout a legal proceeding and regardless of whether or not a self-represented litigant declines legal representation at the outset,  to be mindful of whether the applicant is truly understanding or appreciating the legal proceedings at hand and to provide them with the opportunity to present their views and evidence fully.

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In Li v. Canada, the Honourable Justice Shore reiterated that the best interests of unborn children must be considered in the same way as any other child. The case dealt with a decision from the Immigration Appeals Division (IAD) rejecting the appeal of a removal order issued after the Applicant was found to have misrepresented himself by entering into a marriage of convenience in order to gain permanent resident status in Canada.

At the IAD, the Applicant sought special relief from the removal order based on H&C grounds and the best interests of his child. Although at the time of the IAD decision the child was not yet born, Mr. Li had informed the IAD that his spouse was pregnant shortly after his hearing ended.

The IAD attributed little weight to the pregnancy, holding that “[…] until there is a live birth there are per se no best interests to take into consideration such that the best interests of this yet to be born child would be determinative of the appeal”. Finding that there were insufficient factors to warrant special relief, the IAD rejected the appeal.

In his decision, Shore J. found that the IAD applied the wrong legal test, citing previous jurisprudence, and held that there are no distinguishing factors differentiating a child from an unborn child; a principle that is by no means new but in this case clearly bore repeating. Thus, the IAD had the power to conduct an H&C analysis involving the best interest of the unborn child but failed to do so.

While not determinative in itself, this finding helped tip the scales in favor of the Applicant. In granting the application for judicial review, it was determined that the IAD had unreasonably failed to consider the best interests of the unborn child, the Applicant’s genuine remorse, the positive contribution he and his spouse brought to Canada and the hardship he would face if he were to be separated from his family.

For more information on Federal Court Applications and Appeals, please click here.

(Sources)

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Initial administrative changes were first introduced by the IAD on July 2, 2015 and have ultimately helped the department focus resources where needed.

For full details, please click here.

The post Additional Administrative Change to be Implemented by IAD first appeared on Bellissimo Law Group.

Out of Status – if you are in Canada without status, there is a risk that by filing a sponsorship application you will come to the attention of immigration officials and may face removal from Canada. This tends to occur, in particular, with foreign nationals who have already received a removal order (i.e., as by having made a refugee claim in Canada). If you are removed from Canada before the application is processed to approval in principal – presently about 17 months – the application will be refused as you are no longer eligible, being outside of Canada.

Conjugal Partners – if you are not legally married or in a common-law relationship (cohabited in a romantic relationship for at least one-year), you cannot be sponsored with an In-Canada application for permanent residence.

Appeal Rights – if the application for permanent residence is refused, only overseas applicants are able to appeal that decision to the Immigration Appeal Division (IAD). The IAD is able to consider the evidence and replace the decision of the Visa Office. So if the application was refused because the Visa Office did not believe the relationship was genuine, the IAD could replace that decision, determine that the relationship was genuine, and the Visa Office is bound by that decision. If the sponsorship was made for in-Canada processing, there is no appeal right; however, the refused foreign national may challenge the decision to the Federal Court of Canada (FCC). The FCC is not an appeal, so if for example you are successful at the FCC, the application is returned to the Canadian processing centre for a reconsideration of the genuineness of the relationship.

Work Permit – there is presently a one-year pilot project (ending in December 2015, but may be continued) which permits foreign nationals in Canada, being sponsored in an In-Canada application for permanent residence, to obtain an open work permit soon after processing has commenced. If the foreign national’s application is being processed overseas, there is no automatic access to a work permit.

Interviews – if an interview is required, it will take place in the location where the application is being processed. So, if your application is being processed overseas and you are requested to attend an interview, you would need to travel overseas to the Visa Office to attend that interview. Once you depart Canada, your return would depend on whether you have a visa to re-enter Canada and/or on the decision of immigration officers at the port of entry.

Timing – as indicated, an In-Canada application will be processed to approval in principle in approximately 17 months. It will take an additional 10 months for medical, security and other verifications, for a total of 27 months of processing. Overseas applications are generally processed more quickly: after approximately 2 months of processing in Canada, the application is transferred to an overseas Visa Office. Overseas processing can be as quick as 5 months (Sao Paulo) or as slow as 47 months (Islamabad), so 7 to 49 months total processing time.

Ongoing Travel – an In-Canada application requires that you cohabit with the sponsor, so if there will be lengthy periods of departure from Canada then you may not be eligible for an In-Canada sponsorship. Furthermore, once the application has been submitted it is more likely that your intentions will be questioned upon entrance to Canada: i.e., are you entering Canada as a visitor or do you have a permanent intention? If an immigration officer at the port of entry to Canada believes that your intentions are permanent and also that you are likely not to comply with the terms of your entrance to Canada, you may be refused admission. As indicated above, if you cease to be in Canada and stop cohabiting with your spouse, then your In-Canada application for permanent residence will be refused.

For more information on Spousal Sponsorship, please click here.

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A PR card is evidence of an individual being a permanent resident of Canada. In conjunction with the individual’s passport, the PR card tells immigration officials at the Canadian ports of entry (i.e., airport, land border, etc.) that the individual is a permanent resident and has a right to enter and remain in Canada.

Permanent residence, on the other hand, is a type of legal status in Canada. An individual loses permanent residence status in Canada, generally, by (1) a decision of an immigration official, if that decision is not appealed (or able to be appealed), (2) by a decision of the Immigration Appeal Division (IAD) if the appeal is refused, or (3) by the individual renouncing his or her status.

If an individual’s PR card is about to expire, the individual can make an application for another PR card. Generally each PR card is issued for a period of five years. In determining whether to issue another PR card, an officer will determine whether the individual has complied with their residency. In particular, the officer will assess whether the individual was physically present in Canada for at least 730 days of the last 5 years (or engaging in qualified employment overseas). If the officer is satisfied that the individual has complied, then a new PR card will be issued.

If the officer determines that the individual has not been in Canada for at least 730 days of the last 5 years, the officer may consider whether there are humanitarian and compassionate reasons for the individual’s absence. If the officer is not satisfied, the officer will refuse to issue the PR card and will find the individual non-compliant with section 28 of the Immigration and Refugee Protection Act. This finding of non-compliance can be appealed to the IAD, in a “residency appeal”.

It is best to not travel outside of Canada if one’s PR card is expired or about to expire. If an individual is outside of Canada without a valid PR card and is from a country which requires a visa to enter Canada, that individual must apply for a “Travel Document” from the Canadian visa office in order to travel back to Canada. As with the PR card application, if the visa office determines that the individual has not complied with their residency in Canada, the visa office will refuse to issue the Travel Document. This decision may also be appealed to the IAD.

If you think that you may not meet the residency requirements of your permanent resident status, or if you would like assistance renewing your PR card, we are able to help. Click here for more information.

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It is important to keep in mind that, if the refusal/removal order is appealed to the IAD that the PR remains a PR until a final decision is made by the IAD. If the IAD allows the appeal, then the individual is thereafter a PR in good standing. If the IAD refuses the appeal, then the individual loses permanent residence and will have to depart Canada.

In most cases, the decision is legally valid – the PR was not in Canada for at least 730 days of the five year period. In these cases, the challenge at the IAD is instead to demonstrate that there is sufficient humanitarian and compassionate merit for the IAD to allow the appeal. Each residency appeal brought before the IAD is unique to the PR’s circumstances and requires a balancing of his/her personal (and family) circumstances.

Many of the factors surrounding residency in Canada focus on the PR’s settlement and establishment in Canada. How well has the PR immersed him/herself in Canada? Is s/he truly part of the community – through employment, religion, volunteer activities, etc? Are the PR’s family members, particularly children and spouse, residents and established in Canada? Does the PR have a network of friends or other family members in Canada? These are all questions that the PR should be prepared to address at the IAD to demonstrate that it would be a hardship to leave Canada.

Tied with establishment in Canada, is character and behaviour – this is evidence of being a good member of Canadian society. For this purpose, evidence that the PR is law-abiding is important: does s/he pay income taxes? Does s/he have a clean criminal record in Canada? Participation in Canadian events – whether political, religious, sport – are also of value, as they demonstrate an interest in the Canadian community.

On the other side of establishment considerations is the explanation for having been outside of Canada. If the PR was outside of Canada due to employment or education, then it is important to demonstrate to the IAD that these circumstances are not going to be repeated. It would serve no purpose for the IAD to allow the PR’s appeal, if the individual was going to continue to be working outside of Canada and would default on residency again. The PR should have a clear employment trajectory that will lead to working in Canada, whether it be by finding a Canadian employer, having their foreign credentials approved in Canada, finding Canadian clients if self-employed, or otherwise.

Another frequent explanation for being outside of Canada is family commitments; at times a PR leaves Canada to care for an ailing parent or grandparent, for example. If this is the only explanation for being outside of Canada for over three years (in the five year period), this will be a challenge as it will be important to establish that there was no other family member available to share the care giving to that family member. The IAD will look at whether the PR returned at the first opportunity and whether the prolonged period outside of Canada was truly necessary.

The factors involved in a humanitarian and compassionate appeal are as varied as the PRs involved in this process. It is important to have a clear legal strategy from the day the appeal is filed, so that by the time of the hearing the individual is prepared both with their plan for the future and with appropriate evidence.

For more information on residency appeals, please click here.

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Happy Results for Mother of Three!

We were delighted to assist a mother of three young children, two of whom have special needs, in appealing the refusal of her spousal sponsorship application. Although the visa office was satisfied that her relationship with her husband was genuine, the application was refused because the sponsor had defaulted on a previous sponsorship undertaking.

At the Immigration Appeal Division we argued that despite the sponsor’s default, there were sufficient humanitarian and compassionate factors – including the best interests of the children directly affected – to warrant special relief. We provided extensive documentation corroborating the particular needs of the sponsor’s children and the hardship caused by continued family separation. The sponsor gave compelling oral testimony speaking to these challenges.

The Minister and Member at the Immigration Appeal Division agreed that special relief was justified in the circumstances, and the appeal was allowed. The sponsor is very happy that her husband will soon be able to join her in Canada to help her care for their children.

The post This Week’s Featured Success Story! first appeared on Bellissimo Law Group.

IAD Determines it has Jurisdiction over ARC refusals

A mother applied to sponsor her son to Canada, while the son was in Canada as a failed refugee. In order to complete processing on the overseas sponsorship application, the son had to leave Canada. As a failed refugee, he left Canada with a Deportation Order and so required Authorisation to Return to Canada (ARC). The Visa Office refused ARC, finding that he had taken advantage of Canadian tax payers by making a ‘spurious’ refugee claim and later a Pre-Removal Risk Assessment application, and so refused his application for permanent residence.

The mother appealed this decision to the Immigration Appeal Division (IAD). During the hearing, submissions were specifically requested to address the jurisdiction of the IAD to consider ARC refusal. The Board Member determined that the IAD not only has jurisdiction to consider ARC refusal, but to consider humanitarian and compassionate considerations to override ARC refusal. In considering the family’s circumstances, the Board Member allowed the appeal.

The post This Week’s Featured Success Story! first appeared on Bellissimo Law Group.