Spousal Sponsorship Refused: How an Appeal to the Immigration Appeal Division Works

What is a sponsorship appeal to the IAD?

A sponsorship appeal is a request that the Immigration Appeal Division review a refusal of a family-class sponsorship. The right belongs to the person who properly filed the sponsorship application (IRPA s. 63(1)). What can be appealed is a refusal to grant the sponsored person a permanent resident visa.

A sponsor's wife, husband, or common-law or conjugal partner can be a family-class member under the Regulations (IRPR s. 117(1)). A refused spousal sponsorship is therefore one example of a refusal that can be appealed this way.

This is a different path from judicial review in the Federal Court. Under the Act, a Federal Court judicial review application has to wait until every available right of appeal under the Act has been exhausted (IRPA s. 72(2)(a)).

How long is the deadline to appeal a refused spousal sponsorship in Canada?

The IAD Rules give the time limit. For a sponsorship appeal, the notice of appeal and its attached documents must reach the IAD within 30 days of the appellant getting the officer's decision, along with written reasons where there are any (IAD Rules, 2022, rule 16(a)). The IAD treats a paper document as received on the date its registry stamps it, and an electronic document as received on the date and time shown by the electronic means used (rule 40(1)).

The Rules also say the IAD may extend a time limit after it has passed (IAD Rules, 2022, rule 4(e)). Whether that is available depends on the circumstances and is discretionary, so the safer reading is that the deadline depends on the facts and should be confirmed with a lawyer immediately.

When can a sponsor not appeal?

The Act removes the right of appeal in some situations.

• If the refusal rests on a finding of inadmissibility for misrepresentation, there is no appeal under s. 63(1), unless the sponsored person is a spouse, common-law partner or child of the sponsor (IRPA s. 64(3)). A sponsored spouse therefore falls within the exception.
• There is no appeal where the inadmissibility finding concerns security, human or international rights violations, sanctions, serious criminality or organized criminality (IRPA s. 64(1)).
• For the serious criminality bar, the crime must have been punished in Canada by at least six months of imprisonment, or be described in s. 36(1)(b) or (c) (IRPA s. 64(2)).

Whether one of these bars applies is a legal question about the refusal letter and the file. A lawyer can read the decision and advise.

What does the IAD consider on a sponsorship appeal?

Under IRPA s. 67(1), the IAD can allow an appeal on any one of three grounds, assessed as of the time the appeal is decided:

1. The refusal contains an error of law, of fact, or of both together.
2. A principle of natural justice was not observed.
3. Humanitarian and compassionate (H&C) reasons, with the child's best interests weighed in, justify special relief on all the circumstances.

The last ground has a limit built in. In a family-class appeal, the IAD cannot turn to H&C reasons until it has first found that the person is a family-class member and that the sponsor qualifies as a sponsor under the Regulations (IRPA s. 65). In plain terms, the relationship and the sponsor's eligibility come first.

If the IAD allows the appeal, it sets aside the original decision and either substitutes the decision it thinks should have been made or sends the matter back to the proper decision-maker for reconsideration (IRPA s. 67(2)). If it does not allow the appeal, the Act provides that it dismisses it (IRPA s. 69(1)).

What do "bad faith" and "not genuine" mean in a spousal refusal?

A spousal refusal may rely on the Regulations' rules about relationships. Under IRPR s. 4(1), a person is not treated as a sponsor's spouse or partner if the relationship was entered into primarily to acquire a status or privilege under the Act, or is not genuine. The two parts are worded in the alternative, so either one is enough for the rule to apply.

A second rule, IRPR s. 4.1, deals with a new relationship begun after an earlier one with the same person was dissolved primarily so that someone could obtain status or a privilege under the Act.

What counts as evidence of a genuine relationship is not set out in these sections, and how the IAD weighs it varies with the facts. A lawyer typically reviews the refusal reasons, the application, and the interview or visa-officer notes to see which of these provisions the officer relied on.

How does the appeal process work, step by step?

1. Notice of appeal. The sponsor provides a notice of appeal to the IAD with the officer's decision and written reasons (IAD Rules, 2022, rule 13(1)(a)). The notice must state whether the appeal is in English or French (rule 18(1)).
2. Appeal record. The Minister prepares an appeal record and gives it to the appellant and the IAD once the IAD asks for it (rules 20(1) and 21(1)). It is due within 60 days after the Minister receives the IAD's request (rule 22(a)).
3. Disclosure. A party who wants to rely on a document gives it to the other side and the IAD no later than 60 days after receiving the appeal record (rules 24 and 26).
4. Possible informal resolution. The IAD may require the parties to take part in an informal resolution process meant to settle the appeal without a hearing (rule 64).
5. Hearing. If a hearing is held, it generally takes place at least 30 days after the parties receive the notice to appear (rule 61). Each side is given a chance to put in evidence, question witnesses and argue its position (rule 74(1)).
6. Decision. On a sponsorship appeal, the IAD gives written reasons with its notice of decision (rule 103(1)).

The IAD is not bound by legal or technical rules of evidence, and it may base a decision on evidence it considers credible or trustworthy (IRPA s. 175(1)). Proceedings are generally held in public, unless the IAD orders otherwise (IRPA s. 166(a), (b)).

If an appellant is in default, for example by not appearing at a hearing, the IAD may decide the appeal has been abandoned (IRPA s. 168(1); IAD Rules, 2022, rules 30 and 63).

When it is worth talking to a lawyer

Speaking with a lawyer is usually worth considering when:

• a refusal letter arrived and the 30-day period is running;
• the refusal cites bad faith, a relationship that is "not genuine", or misrepresentation;
• the refusal mentions criminality or another inadmissibility finding, and it is unclear whether an appeal is allowed;
• there is a child whose circumstances might matter to the H&C ground; or
• it is unclear whether an appeal, a new application or Federal Court review is the better route.

A lawyer can also explain how the court-based review route at the Federal Court and the humanitarian and compassionate application route differ from an IAD appeal.

What to gather

• The refusal letter and any written reasons or officer notes
• The full sponsorship and visa application package as submitted
• Proof of the relationship: photographs, communication records, travel records, joint documents
• Marriage certificate and identity documents for both people
• Documents about any child affected by the outcome
• Any earlier correspondence with IRCC, including internal officer notes, if they have been obtained (see how to request them)