Calgary Immigration Lawyer Raj Sharma, a former immigration hearings officer and now partner at Stewart Sharma Harsanyi, one of Western Canada's premier immigration law firms, reviews Canadian immigration developments.
I have written previously about the spousal sponsorship appeal hearing.
This is the most common type of appeal before the Immigration Appeal Division (IAD).
The appeal is from a refusal by an overseas visa officer (Note - there is no appeal for a "In-Canada Spousal Sponsorship") of a spousal sponsorship application. Typically 'red-flags' alert a visa officer - this can be in the form of incompatibilities, such as a disparity in age, education, social/linguistic background; or it could be a poor performance at an interview and the applicant displays a lack of knowledge of the sponsor.
The sponsor (a Canadian citizen or permanent resident) has to file a Notice to Appeal within 30 days of receiving the decision. The Notice of Appeal can be faxed.
The visa officer generally takes issue with the bona fides or 'genuineness' of the relationship. On some occasions, there may be an issue with the legal validity of the marriage (for example, a sponsorship will be refused if the marriage is not in accordance with the laws of that particular country; China/PRC for example does not recognize cousin-cousin marriages; other countries may have an age requirement). If there is an issue with the legal validity of the marriage, it may make more sense to attempt to cure the deficiency and re-apply.
There may be a possibility that the matter may be resolved through the ADR process (see my previous posts on this topic). If ADR is not an option, or the ADR didn't resolve the matter in the sponsor's favour, a full hearing will be scheduled. This is heard before the IAD. Unfortunately, this can take well over a year from the time the Notice of Appeal is filed.
The general practice in the Western Region is to call both the sponsor and the applicant as witnesses (the applicant appearing via teleconference).
Questions are asked as to the genesis, development/evolution of the relationship along with questions that explore the reasons for the visa officer's refusal in the first instance. In most cases, questions will be asked as to the knowledge each of the parties has as to their respective lives. It is essential to establish contact and post-marriage behavior of the parties (I have written previously as to the factors the IAD examines).
The sponsor and applicant should remember that this is an adversarial proceeding - that is, the hearings officer will cross-examine the witnesses and test credibility. This can be an uncomfortable experience, especially if the sponsor and applicant have not been prepared in advance.
If the appeal is granted, the decision of the visa officer is set aside and the visa office is required to continue processing the application for permanent residence. The applicant/overseas spouse will be required to provide updated police clearance/medical examination to the visa office. Unfortunately, it may take another year before the couple is reunited in Canada.
If the appeal is not granted, the couple has very limited avenues of recourse. An application for judicial review to the Federal Court is one option, however, individuals should realize the considerable deference granted to decisions of the IAD.
I was at the IRB this morning to finish a spousal sponsorship appeal. Ministers Counsel was Ms Catherine King who is adept at cross examination and, given her posting at CHC Delhi, understands the cultural considerations at play for a sponsorship from India.
While the presiding Member, Ms Maryanne Kingma, had reservations about some of the aspects of the case, she rendered an insightful (and positive) oral decision which took into account the legal burdens at play and the operation of section 4 of the Regulations.
The experience this morning is an example of a proper administrative proceeding which should be granted considerable deference by a reviewing court. The decision maker was efficient, fair, was knowledgeable about the relevant statute and jurisprudence, and was cognizant of the evidence before her.
Just finished watching the w5 news program on immigration marriage fraud.
Julie Taub, an Ottawa immigration lawyer, suggests that immigration law be changed to grant only conditional status in Canada to the sponsored spouse. I'm not sure I agree. This could result in abuse and coercion as well - a method of control by the sponsor over the immigrant spouse.
Immigration minister Jason Kenney is indicating changes and reforms are imminent. To some degree I am in agreement with what Kenney stated. Individuals need to be responsible for their own choices. Immigration to Canada is a significant benefit and could be an incentive to unscrupulous individuals. As a result, sponsors need to take appropriate precautions.
As it stands visa officers test the bona fides of a marriage by way of an interview of the sponsored spouse. This may be insufficient to protect duped sponsors or the integrity of the system. Given the actions of unscrupulous immigration consultants (Pinnacle Immigration was captured on video by w5 discussing a sponsorship for 40000) and the plethora of fraudulent marriages perhaps follow up interviews should be done by immigration after the immigrant spouse arrives in Canada.