Alternative Dispute Resolution Meetings at the Immigration Appeal Division

The Immigration Appeal Division can hear the appeal of a permanent resident who is the subject of a removal order (for misrepresentation, criminality*, and breach of the residency obligation). If you have sponsored your spouse, common-law or conjugal partner and a visa officer has come to the conclusion that the marriage is not valid or not genuine (or both) then you can appeal that determination to the IAD as well.

As an aside, it’s not that easy to determine a “marriage-like” relationship. Even our courts are struggling with it. Yet our visa officers abroad seem to have no issue in determining the genuineness of a relationship after a quick interview.

Other appeals include adoptions, medical inadmissibility (for sponsored family members). I hope I’m not missing anything. If I am, please let me know.

The reality is that demand on our legal resources will always exceed capacity and resources. It’s taking over 18 months in the Western Region to get in front of the Immigration Appeal Division (and apparently longer than that out east). If your spousal sponsorship has been refused and depending on the processing time of the responsible visa office combined with the backlog at the IAD, it could be 4 or more years before your spouse finally comes to Canada. That’s hardship (for any genuine relationship anyway).

The powers that be at the Immigration and Refugee Board have instituted a number of changes to deal with the backlog. Unfortunately, a lot of what I heard at this year’s CBA National Immigration Conference seemed to be centred around limiting access to the Board. Getting to yes or no is faster, but it seems to me that its far more of the latter than the former.

One way of getting to a faster yes or no is the Alternative Dispute Resolution process which has been around for at least a decade. The relevant background is on the IRB’s site. Obviously, only if it’s a “yes” will the ADR result in a decreased burden on hearing room time. If it’s “no”, 9 times out of 10 the sponsor or permanent resident will simply proceed to the full appeal.

Many times the limiting reagent to success of the ADR as a true “alternative” to the hearing room and full hearing is the identity of the attending hearings officer from CBSA. That’s because the hearing officer essentially runs the show – while a Dispute Resolution Officer (DRO) is there, they are not, at least to my understanding, playing a substantive role. Depending on which CBSA hearings officer you may have the luck to draw, the ADR may be nothing more than a formality. Even if you have a fair officer, an ADR is frequently refused based, many times, on the following rationale:

I. “It’s too complicated”. This is usually the case in medical inadmissibility appeals. Medical terms can cause many eyes to glaze over. So, even if you come with appropriate disclosure, expert (2nd) opinions, a clear and cogent plan to mitigate a perfectly manageable condition, expect your pleas to fall on deaf ears (also a medical condition, and one that could result in medical inadmissibility to Canada). If these types of cases are not suitable for ADR, then they should never be streamed in to begin with.

II. “I’m not satisfied”. This is the usual rationale for refusing a spousal sponsorship appeal. In this case, the sponsor comes with hundreds of supportive documents, credibly addresses the concerns of the visa officer, pours her heart out and then is dismissed. Despite counsel’s efforts to manage expectations, the client is crushed, disheartened. The problem with this “rationale” is that there is no justification for it. The test of course is whether the appellant can establish on a balance of probabilities that she is not caught by s.4 of the Regulations. Balance of probabilities is the operative term. It’s not supposed to be subjective or individual to the officer. The officer should be viewing the appeal through the lens of an independent decision maker – or, “What would an IAD member do?” If an appellant has crossed the Rubicon of 50+1 then just allow the appeal rather than make the client spend more $$ and wait more time to start her life in Canada with her life partner.

III. “If it’s not too complicated, I’m going to make it complicated.” This happened recently to a case of mine. The couple had eloped. The marriage was not in accordance with the particular cultural background. There was a very good, credible reason. At the end of the ADR, the hearings officer agreed that the marriage was genuine, however, he then raised a new ground (without evidentiary or legal foundation) that the marriage may not be legally valid (despite the existence of a marriage certificate). There’s a difference between speculation and inference. One is permissible, the other is not when we are dealing with people’s lives. Thankfully, this appears to be a rare occurrence.

My thoughts

I can only obviously speak for myself and the experiences of the lawyers at my firm. This may well be a problem confined to the Prairie Region. Perhaps the ADR process is working without issues in other parts of Canada.

In any event, in my opinion, there seems to be a reluctance on the part of some officers to make a decision and that the “safe” thing to do is refuse and refer to the IAD. However, the ADR expressly calls upon the officer to make that call so that the IAD can conserve its scarce resources on the cases that really need a full hearing. Take the bull by the horns and make the call. There are experienced hearings officers that will do it, even if it involves criminality.

In terms of being satisfied on a spousal sponsorship, I think it’s important to follow a framework of analysis rather than rely on a gut-feel. How long have the couple been together? Has the sponsor credibly explained the origin and development of the relationship? Has the sponsor been able to address the deficiencies identified by the visa officer? Did the visa officer rely on stereotypical reasoning or improper considerations? Are the couple compatible, and where they are not, how did the couple overcome same? Is the sponsor credible, answering in a spontaneous fashion? Does he or she have adequate knowledge of their partner overseas? Is there clear evidence of ongoing contact, communication, return trips, financial support? Can an intent to the marriage be discerned? If so on a balance of probabilities then the officer should acquiesce to the ADR.

Finally, this exercise is all about getting at a fair resolution, informally, quickly while respecting the objectives of the Immigration and Refugee Protection Act. If the multi-year relationship is genuine, why throw up additional roadblocks based on speculation? Even if there’s issues with technical legal validity (due to some defect in the foreign documents) an officer has the ability to “convert” a marriage to that of a common-law or conjugal status.

In my opinion, the CBSA hearings officer is the lynch-pin in the IAD’s efforts for early resolution. Of course, Counsel has a role to play as well. Early disclosure, early identification of the relevant issues and preparation of the client is vital. It’s probably a really good idea to have counsel for the Minister and counsel for the sponsor/person concerned to communicate in advance of a specific ADR or proceeding. We only learn of the assigned Officer at the ADR proceeding, and that’s also true most of the time even when it’s slated for a full hearing. Again, that may well be an issue confined to the Prairies. In any event, it’s clear that ongoing communication between the stakeholders and the Board is essential to improve and carry out the Board’s mandate in an efficient and fair fashion while respecting the objectives of the Act.