Your focus when you and your counsel prepare for the hearing will depend on the type of the application, whether it is a spousal appeal (your wife/husband or spouse has been refused a permanent residency in Canada), criminal inadmissibility (a permanent resident is facing losing his/her status in Canada because of criminal record) or residency obligation matter, or any other type which is within the jurisdiction of the Immigration Appeal Division (IAD). Having said that, some general rules apply such as thorough preparation of supporting documentation, familiarization with the Minister Counsel’s disclosure package, preparation of witnesses and building a theory of the case. “Theory of the case” is the idea on which you hope to win your case. Your legal counsel builds the theory of your case and you are expected to work with them as a team meaning that you have to put in all the effort possible to obtain all recommended supporting documents. I hear sometimes from my clients that they do not really want to visit a psychiatrist/ psychologist in order to obtain a report due to its cost, or a community leader who could be of a great assistance in providing their letters in support of the appellant. You should understand that everything matters when it comes to your case as it is your duty to satisfy the judge (adjudicator) that your case is stronger than the case of the immigration authorities who initially refused your application.
What are the key elements you should look at when refused a spousal application to sponsor? The common reason for this type of refusal is that the marriage (or common-law relationship) has not been considered by the immigration officer as genuine. The officer, in assessing the situation, looks at the supporting documents and the story of the parties involved. It is the Immigration and Refugee Protection Act which gives power to the authorities to make an inference of sincerity of relationships. If, for example, your foreign spouse revealed at the personal interview that she did not know about your Canadian job or account at the bank or something that is expected to know from a spouse, then she/he could be refused. Of course, a combination of factors play role in the decision, but very often a spouse is refused because she/he could not answer questions, or because supporting documentation was not strong enough. When your, a Canadian spouse appeal the negative decision made against the foreign spouse, you should make all effort to correct the situation and explain why your spouse did not know about some facts related to your case. Let’s say, the officer looked at your wedding photos and said that it looked suspicious you did not have parents at the wedding and the dress of the bride was rather of a casual kind (or you were wearing jeans at your wedding). At the appeal, I as your counsel, would have suggested to: a) explain why it happened (family tradition, custom in your country, financial difficulties, etc.) and present some supporting documents, if possible. If it was your fifth marriage, then a simple explanation would be enough. If it was your first marriage, but both of you were students at the time, then presentation of school papers would assist you in demonstrating that your focus was to pay tuition, not spending money on the wedding. I had clients who married in a small church and nobody was witnessing their registration. They were students at the time and generally were of the opinion that a big ceremony was a waste of money. We presented the panel with family photos of their relationship history where the couple was going on simple inexpensive camping trips together, instead of fancying dinners at the restaurants. The overall of lifestyle was supposed to make a simple wedding. So, my approach at the appeal hearing of this type is to present the truth about each individual couple and expand their story to show that they have their unique style in the relationship.
It is hard to deal with criminal inadmissibility as the facts of your criminal record say you have committed the offense and were convicted. However, you should know that not all types of criminal offenses make you inadmissible. The immigration officers sometimes make mistakes in equating foreign criminal charges with the Canadian ones. Therefore, your counsel will re-examine the legality of the officer’s decision. The second element is humanitarian grounds. Even though you might be an inadmissible class, you have a family ties in Canada, a career and any other compelling ground that could help the adjudicator to decide that you can keep your status.