When a canadian citizen or a permanent resident of Canada files a sponsorship application of a family member (a spouse, a common law spouse, etc.), at the same time and within the same file, the family member ( the foreign citizen) files an application for permanent residence in Canada within the family category.
In some cases the immigration agents may refuse the application for permanent residence of the sponsored family member (the foreign citizen). The reasons of refusal may be different, but the most frequent reason of refusal in cases of sponsoring a spouse or a common law spouse is that to the opinion of the immigration agent the relationship is not authentic, in other words that marriage was contracted or the common law relationship alleged for the main purpose of obtaining admission to Canada as an immigrant and not with the genuine purpose of having a real marital life.
When the immigration agents examine the sponsorship application, they decide on a case by case basis if an interview is necessary in order to verify the authenticity of the relationship, in case of a doubt an interview is scheduled with the sponsored person, or with both spouses, especially if both spouses are living in Canada. The questions during the interview are about the circumstances in which the spouses met, about the visits and common life of the spouses, about their communications, about their personal tastes, about financial support, etc. Often, the sponsored person or the sponsor are so stressed and not used to be questioned, that they do not understand well the questions, that they do not provide all the relevant information in order to demonstrate the authenticity of the relationship, and the immigration agent ultimately makes a decision of refusal.
In order to avoid that errors or injustices occur, the Immigration and Refugee Protection Act of Canada allows the sponsor (canadian citizen or permanent resident of Canada) to file an appeal of the decision of refusal to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRBC). The notice of appeal has to be filed within thirty (30) days from the date on which the decision of refusal was received by the sponsor.
This type of appeal allows the sponsor and the sponsored family member to present additional explanations and additional evidence in order to demonstrate that the marriage or the common law relationship is authentic and that the decision of refusal is wrong. If the appeal is granted, the decision of refusal is canceled and the processing of the application for permanent resident of the sponsored family member must continue and if there are no reasons of inadmissibility the sponsored family member obtains the status of permanent resident of Canada.
In some appeal cases, the IAD decides to schedule a mediation hearing called Alternative Dispute Resolution (ADR), and this with the objective to come to a decision faster, if possible. The main purpose of the ADR is to give an opportunity to the representative of the Minister to assess the new explanations and evidence provided by the appellant and to decide if they are enough to conclude to the authenticity of the marriage or the common law relationship, and in the affirmative to accept that the appeal be granted and this way avoid the need of a full appeal hearing.
A hearing within the program ADR normally takes place soon after the notice of appeal is filed (generally within six (6) months after the filing of the notice of appeal), while a full hearing on the appeal may take up to two (2) years after the filing of the notice of appeal.
In case of a refusal of a sponsorship application Me Robert Brankin can assist you to prepare your appeal and also can represent you during the appeal procedure.