In Immigration Appeal Division (IAD) you can appeal a negative decision on a sponsorship refusal (if you sponsor your wife/husband or parents), permanent residency obligations (when a permanent resident loses their status due to lack of physical presence in Canada), criminality, medical inadmissibility and misrepresentation. It has to be noted that only permanent residents’ matters can be appealed.
Many of my clients whose sponsorship applications were refused for the lack of proof of genuineness of the marriage, ask me whether or not it is a good idea to appeal the refusal, or resubmit the application. First of all, if your application was submitted “from inland” meaning that your spouse (wife/husband) reside with you in Canada, appeal is not an option. If however, the application was launched at the Canadian consulate of the country your spouse resides, then you may consider that option. I almost always advise my clients to appeal a negative decision because I used to work with experienced and well trained adjudicators (judges in that board) who are able to look objectively at the situation. When we deal with the immigration authorities at the Immigration, Refugees and Citizenship Canada (IRCC), we don’t meet with the officers in person. Even if an applicant is invited for a personal interview at a Canadian consulate or embassy in their country, they are most often not accompanied by their Canadian spouses, let alone, a legal counsel. The officer asks questions to an unprepared applicant and they fail to demonstrate their marriage to a Canadian is genuine. The immigration officer, under the Immigration and Refugee Protection Act (IRPA) provisions decides whether the marriage is genuine or is entered solely for immigration purposes. Very often, if the applicant, for example, did not answer a question on how much the property in Canada cost, or how much their spouse earns, the officer will make a negative implication. Of course, the decision is not made by only taking into consideration one wrong answer. It is usually a combination of a personal interview, story of relationship and supporting documents presented. Unfortunately, more often than not, officers make wrong decisions. Sometimes, it happens because the officer is insensitive to cultural differences, or they are poorly trained to recognize the uniqueness of each spousal situation. In any event, if the refusal is delivered, I recommend appealing the case and having the opportunity for the Canadian spouse to testify in person before the adjudicator and give their side of the story. Also, the applicant can participate in the hearing over the phone. I always tell my client that, if their marriage is real, I will prove it. If the spouse however decided to re-apply, they must be advised that the immigration officer will again assess their case and it’s not always possible to persuade them of the bona fide (sincerity) of the marriage.
Sometimes, the immigration authorities give a two months opportunity to present new evidence before making a negative decision and thus, it is imperative to act accordingly to save your case.
There were two recent cases in my office where the officers stated in their letter to the applicant that they are of the opinion that the application must be rejected. Yet, they gave us 60 days in both cases to present additional documents. We did, along with my submissions and won those cases.
Sometimes, your counsel must be very straightforward and fearless to deliver a message to a decision making officer that their decision must be well weighted before rejecting the case. I remember one instance when an officer overseas made a negative inference primarily because my client was “illegally” remaining in a hosting country for a long period of time. (I used quotations because the poor fellow was looking for more time to obtain a status where he failed to prove he was a refugee). So, the officer was of the opinion that my client chose another democratic country, Canada, to move here, and married a Canadian for that. I warned that officer in writing that my evidence I presented for both, the sponsor and the applicant was stronger than the past history of the applicant when he lived in England and made his refugee claim there. Additionally, I warned the officer that they could not form an unbiased opinion without a personal interview at the consulate where the matter was held. And finally, I delivered the officer a message that, if we appeal, the immigration department he represented would not look good in front of a judge. Needless to say, we won the case and my clients successfully re-united in Canada.
