Appealing a Spousal Sponsorship Refusal
I was before the Immigration Appeal Division today on an appeal from an overseas spousal sponsorship refusal.
The sponsor needs to establish, on a balance of probabilities, that they are not caught by s.4 of the IRPR. In essence, the relationship needs to be both genuine and not entered into primarily for the purposes of immigrating to Canada. Evidence needs to be adduced by way of disclosure (prior to the hearing and in accordance to the IAD Rules) and by the testimony of the parties. Generally speaking, both the appellant and applicant should be called (the applicant is usually called by way of telephone call).
I have written on this issue many times. There is no one determinative factor for the IAD to assess genuineness. Counsel need to be aware and deal with the following:
Inconsistent or contradictory statements (at the visa office interview, or at the hearing itself). You must deal with credibility.
Pull/push factors. Has the applicant tried to come to Canada in the past? Is there another reason for him/her to come here other than to join his/her spouse/common-law partner?
Knowledge. Most appeals turn on this. Remember that knowledge varies with the nature of the relationship. There may be cultural reasons as to a lacunae in knowledge on certain issues by the parties. There should be appropriate knowledge of family/extended family members.
Contact. Communication. Return visits. There should be evidence of all three or a clear reason as to the absence of any.
Financial support/interdependence of the sponsor/applicant.
Children (either brought into the relationship, or born into the relationship) are a significant factor.
Compatibility. This is self-explanatory.
The test is disjunctive, that means that the appellant needs to establish that neither prong applies.
It is vital that success is achieved at this hearing. The Federal Court gives significant deference to the IAD.
As stated by Barnes J. in Gill v. Canada (Minister of Citizenship and Immigration) [2010] F.C.J. No. 229, in sponsorship appeals, the IAD “must proceed with great care because the consequences of a mistake will be catastrophic to the family.”