Sponsorship appeals — Immigration Appeal Division

When a family class sponsorship is refused, the refusal letter is usually not the end of the matter. A sponsor in Canada whose application to bring a spouse, common-law partner, child, parent or grandparent has been turned down has, in most situations, a right of appeal to the Immigration Appeal Division of the Immigration and Refugee Board. Karb Law prepares and argues those appeals.

Angelina Shuster is a paralegal licensed by the Law Society of Ontario, and representation before tribunals of the Immigration and Refugee Board — the Immigration Appeal Division among them — falls within a licensed paralegal's scope of practice. Our legal team assists with the full range of your matter, including applications filed with IRCC. This page is general information about procedure and is not legal advice; reading it creates no paralegal-client relationship.

What a sponsorship appeal is

A sponsorship appeal is a hearing de novo — a fresh hearing on the merits, not a review of how the officer handled the file. The Division hears evidence, including oral testimony from the sponsor and, where arranged, from the applicant abroad by videoconference or telephone. Documents that did not exist when the officer decided can be filed. The Minister is represented by counsel, who appears as the opposing party and cross-examines.

Two things follow. A weakness in the original application can be answered with evidence rather than argument alone, and the appeal is decided on the record built for the Division — so what is assembled after the refusal often matters more than what was sent before it.

Who has a right of appeal, and who does not

Section 63(1) of the Immigration and Refugee Protection Act gives the right of appeal to the sponsor in Canada, not to the family member abroad. Section 64 then removes it in defined situations:

• Serious criminality — there is no appeal where the foreign national has been found inadmissible for a crime punished in Canada by a term of imprisonment of at least six months.
• Security, violations of human or international rights, or organized criminality — no appeal lies on any of those grounds.
• Misrepresentation — no appeal, unless the foreign national is the sponsor's spouse, common-law partner or child.

Where a bar applies the Division has no jurisdiction, and the Minister may raise it by motion before any hearing is scheduled. Whether one applies is itself arguable: the equivalence of a foreign conviction to a Canadian offence, and the length of the sentence actually imposed, are questions of fact and law rather than administrative labels. How findings under section 40 are approached is set out on our page about misrepresentation.

The 30-day deadline and how an appeal starts

A notice of appeal is filed with the Immigration Appeal Division within 30 days of the day the sponsor receives the written refusal. The period runs from receipt of the decision, not from the date printed on it and not from the day its contents were first discussed by telephone. Late filing is not automatically fatal, but it becomes a separate application with its own explanation to give.

Filing sets a sequence in motion. The Division requests the record from the visa office or processing centre, that record is disclosed to both parties, and the appeal is then scheduled — in most family class matters, for alternative dispute resolution before any hearing date is set.

Why sponsorships are refused, and what an appeal has to answer

The ground of refusal decides what the appeal is about, and the grounds are not interchangeable.

• Genuineness of the relationship. Section 4 of the Regulations excludes a spouse or partner from the family class where the relationship was entered into primarily to acquire status under the Act, or is not genuine. The evidence here is the ordinary material of a shared life — communication over time, visits, finances, and the accounts of people who know the couple.
• Excluded family member. Regulation 117(9)(d) prevents the sponsorship of a family member who existed but was not examined when the sponsor themselves became a permanent resident. This is a hard exclusion, and appeals of it usually run on the discretionary branch.
• Medical inadmissibility — a finding that admitting the applicant might reasonably be expected to cause excessive demand on health or social services, answered with current medical evidence.
• Financial requirements — a sponsor found not to meet the income requirement that applies to the class being sponsored, or found to be in default of an earlier undertaking.
• Inadmissibility of the applicant on criminal or other grounds, where the underlying finding is contested or the discretionary branch is engaged.

The alternative dispute resolution stage

Most family class appeals are first scheduled for an ADR conference — an informal session, commonly held by videoconference, with a Division dispute resolution officer and Minister's counsel. It is not a hearing. The sponsor answers questions, the file is examined, and the Minister decides whether to consent to the appeal being allowed, to resolve it on written material, or to send it to a full hearing.

ADR resolves a substantial share of these appeals, and far earlier than a hearing date would arrive. Preparation for it is the same work as preparation for a hearing, brought forward.

What the Immigration Appeal Division decides

A sponsorship appeal has two branches, and many appeals run both.

The first is legal validity: whether the refusal was correct in law and on the facts. An appeal that succeeds here ends the matter, because the ground of refusal falls away.

The second is discretionary relief under section 67(1)(c), available in family class appeals. Even where the refusal was legally correct, the Division may allow the appeal where sufficient humanitarian and compassionate considerations, taking into account the best interests of a child directly affected, warrant special relief in all the circumstances. Hardship to the family in Canada, the history and closeness of the relationship, and the consequences of continued separation are the substance of that branch.

What the Division is able to order

• Allow the appeal — the refusal is set aside and the application is returned to an officer for reconsideration in accordance with the Division's reasons. The Division does not itself issue a visa.
• Dismiss the appeal — the refusal stands.
• Find that it has no jurisdiction where a section 64 bar applies, without deciding the merits.

What representation involves

• Reading the refusal against the record — obtaining the officer's notes and identifying which ground is actually in issue, since that decides everything else.
• Filing the notice of appeal within the 30 days, and dealing with the disclosure of the record when it arrives.
• Building the evidentiary file — the documents, declarations and witnesses that answer the stated ground, rather than a general portrait of a family.
• Preparing the sponsor and the witnesses for questioning by Minister's counsel, and arranging testimony from abroad and an interpreter where one is needed.
• Appearing at the ADR conference and, where the matter is not resolved there, at the hearing.
• Making submissions on both branches, so that the discretionary case is before the Division even where validity is argued first.

Appeals of other kinds heard by the same Division are described under immigration appeals, and the appeal route open to a permanent resident assessed on time spent outside Canada is set out on our page about residency obligation appeals.

Who this service is for

Enquiries generally come from a sponsor holding a refusal letter and counting days; from a couple refused on the genuineness of their relationship after an interview; or from a family that has discovered a child or parent was never examined years ago. What is most useful at a first call is short — the refusal letter and the date it arrived.

Where the underlying matter is a spousal or partner sponsorship, the process before any refusal is described on our spousal sponsorship page. Where a removal order has been made against a family member already in Canada, the different orders and their effects are set out under removal orders.

Speaking to us

Karb Law is in Richmond Hill and appears at Immigration and Refugee Board proceedings across the Greater Toronto Area. Because the appeal period runs from the day the written refusal is received, early sight of the letter matters. You can contact the office, request a free assessment, or read more about our immigration work and our practice areas.