After submitting an application to sponsor family overseas, sponsors are sometimes confronted with refusals based on a shortfall in meeting the MNI or minimum necessary income (currently defined as the LICO or low income cut-off plus 30%).
There is a right of appeal against such decisions -as long as the sponsor has indicated in their sponsorship forms that they wish to continue with the application notwithstanding any issues of ineligibility. The Immigration Appeal Division or IAD will look at two different areas in such appeals. Firstly, an appellant can argue that the visa office decision is not valid. This is relatively rare as it is simply black and white whether the sponsor met the minimum necessary income requirements at the time of sponsorship and at the time of the visa office assessment. The vast majority of these appeals are decided on the IAD equitable jurisdiction that is on humanitarian and compassionate grounds. The IAD will look at all of the circumstances of the case including the best interest of any child or children affected by the decision and can still allow these appeal and direct the visa office to continue processing the file notwithstanding the noncompliance or shortfall.
The Immigration Appeal Division usually looks at the following factors (it is important that the sponsor and his or her counsel adduce or produce evidence that supports these or the existence of these factors in the appeal). One of the objectives of the Immigration Refugee Protection Act is family reunification and it is important to canvass and explore the strength of the relationship between the sponsor and applicant or applicants; the reason for the sponsorship in the first place; the impact to the sponsor and appellant and/or applicants in the event that the appeal is not granted; (if applicable) how the best interest of any children affected by the decision are at play; the sponsor's establishment and current financial circumstances in Canada -and it is our practice to explore the extent and reason for the shortfall in the first place.
If the sponsor meets the MNI at the time of appeal, then the threshold of humanitarian and compassionate grounds is lower. If the sponsor does not meet the MNI at the time of the appeal, the level of H&C or humanitarian and compassionate grounds rises in direct proportion to the extent of the shortfall. Simply put, the larger the shortfall, the greater the H&C grounds to succeed on appeal.
If the sponsor meets the MNI at the time of appeal, then the threshold of humanitarian and compassionate grounds is lower. If the sponsor does not meet the MNI at the time of the appeal, the level of H&C or humanitarian and compassionate grounds rises in direct proportion to the extent of the shortfall. Simply put, the larger the shortfall, the greater the H&C grounds to succeed on appeal.
Every case is different; prior to the hearing, you should meet with your lawyer who should provide you with an overview of the areas of questioning and give you sample questions. Expect to be questioned at the hearing and ensure that you are able to provide answers to questions surrounding your immigration history; the nature of and frequency of communication between you and the applicants; the reason or reasoning behind the sponsorship in the first place; the reason for the shortfall or inability to meet the MNI; the impact or consequences on any children in the event the appeal is allowed or, conversely, the appeal is rejected; your assets and income in Canada, and the assets and income available in the event that funds are needed for the applicants overseas, whether those assets or resources could be made available here; family in Canada and family members outside of Canada; details as to hardship or impact in the event that the appeal is rejected.
You should ensure that you provide your counsel with documents that corroborate and are supportive of your appeal; these documents have to be provided to the Immigration Appeal Division and the CBSA or Minister's counsel in accordance with the IAD Rules and several weeks prior to the hearing (we generally try for more pro-active disclosure at this office, early disclosure sometimes leads to non-hearing alternatives).
We hope that the above provides context to the refusal of your sponsorship appeal and dealing with that refusal by way of an appeal to the IAD.
If you have any questions or concerns regarding a sponsorship refusal, please do not hesitate to reach out to the lawyers at our office.
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