International Law

Tips for a (spousal sponsorship) appeal before the Immigration Appeal Division

By Raj Sharma

Just attended with a client for his spousal sponsorship appeal before the Immigration Appeal Division.The appeal was allowed despite the opposition of the CBSA hearings officer (the officer had concerns about the fact that the couple decided to marry within 8 weeks of contacting each other on-line and the fact that they registered their marriage on the same day that they met in person).

If a spousal sponsorship application is refused by an overseas visa office (Note -- there is no appeal right to the Immigration Appeal Division for an "In Canada Spousal Sponsorship") the sponsor needs to file a Notice of Appeal within 30 days of receiving the negative decision.

There is a possibility that the matter may be dealt with by way of ADR (Alternative Dispute Resolution) which is a hour long interview with the sponsor. If the ADR is unsuccessful, the sponsor is still afforded an opportunity to be heard before the IAD.

As with all hearings before any division of the Immigration and Refugee Board, the proceeding is an informal one. That means, unlike Court, there are no formal rules of evidence. That being said, the IAD does have rules of procedure, including a requirement that disclosure is provided to the IAD and CBSA at least 20 days in advance of the hearing. Moreover, if the applicant (the sponsored person) is called as a witness, a calling card and a phone number has to be provided to the IAD support staff (in advance).

If an interpreter is being used, both the sponsor and the applicant should be instructed to pause intermittently to allow the interpreter an opportunity to interpret fully.

The sponsor and applicant should be instructed that it's ok to say "I don't know" or "I don't understand the question". The sponsor and applicant should generally refrain from guessing, but should indicate that they are doing so, or approximating when providing such an answer. People get nervous and so they should be reminded of the basics ... "when" calls for an answer with a date (day, month, year), "where" calls for a location etc.

At the start of the hearing, the Presiding Member will ensure that all parties have the same documents. This is generally comprised of the Appeal Record and any disclosure provided by the sponsor. If photographs are tendered in evidence, I would recommend that original photographs or colour copies are provided.

A good starting point is a review of the visa officer's refusal/decision letter and the CAIPS notes (these are both found within the Appeal Record). The sponsorship application is also found in the Appeal Record and reference may be made to the information contained therein.

One complicating factor is the amendment to Regulation 4 of the Immigration and Refugee Protection Regulations. Besides having a good grasp on the facts, counsel should be able to discuss the conjunctive reading of the new legislation. I can't stress the importance of preparing both the sponsor (and ideally the applicant) prior to the hearing. The onus is on the sponsor to establish his or her case on a balance of probabilities. Note -- it is the intentions of the applicant that are paramount.

In terms of the order of questioning, counsel for the sponsor will question first (direct examination). Since this is an adversarial proceeding, Minister's counsel can then vigorously cross-examine the witness. The Presiding Member generally asks questions during both direct and cross-examination. 

Unfortunately, the new, conjunctive nature of Regulation 4 could very well result in genuine marriages refused even on appeal.

Full post as published by Canadian Immigration Blawg on March 30, 2011 (boomark / email).