Spousal Sponsorship Appeals

It is a somewhat confusing and frustrating fact that you can only appeal a refused sponsorship application if you are a Permanent Resident, and if the visa office abroad has determined that the person(s) you were trying to sponsor is a member of the family class. The first implication is that the decision you are challenging must come from a sponsorship application. For instance, if you are a Convention Refugee and you include your children in your PR application, and your children's application is refused, you have no right of appeal to the IAD but can only challenge the decision at the Federal Court.

Sponsorships are refused for many reasons, a very common one being that the visa office believes that your marriage, for example, is one of convenience. If the application is refused, you have the right to appeal to the IAD. If the IAD believes it to be appropriate, it may refer your case for Alternative Dispute Resolution (ADR), which may result in your case being resolved. If it isn't resolved at ADR, it will proceed to a full hearing. As in removal order appeals, it is highly recommended that you hire a lawyer to assist you.

Section 117(9)(d)
Section 117(9)(d) of the IRPRegulations has become infamous for the damage that it is wrecking on families all over the world. The basic principle behind this provision is that all family members must be examined prior to you becoming a Permanent Resident, because if one of your family members is inadmissible for some reason, the entire family is also inadmissible. If you fail to include a family member in your application, and as a result that person is not examined by the visa office, you can no longer sponsor them because their absence from your application has in effect resulted in them losing their status as a member of the family class. If you're really unlucky, CIC can summon you to an inadmissibility hearing based on your omission.

It takes some amount of mental gymnastics to understand how a family member can be deemed not to be a family member, but that's what CIC does all too often. A typical scenario is that a child is left off a PR application say, because she is the child of a first husband and your current husband does not know about it. Then, you and your family gets landed, you tell your husband about the child and decide to sponsor her. The likely result of this application is that the visa office will determine that since you never included this child on your PR application, she was never examined, and as a result, she is not a member of the family class. The kicker is that because of that finding, you cannot appeal the decision to the IAD. The only recourse is Federal Court, but the Court is likely to find for CIC since technically, they are going by the letter of the law.

As you can see, the implications of omitting a family member from a PR application are severe. And although there are a number of understandable reasons for doing so, it's better to be informed of the consequences before making such a decision. If the above description applies to you, you will need the assistance of a lawyer to try to get your excluded family member to Canada.