Last Updated on February 1, 2013
One of the principal objectives of the Canadian Immigration program is to promote family reunification. A Canadian citizen or permanent resident may apply to sponsor a family member to become a permanent resident in Canada under the Family Class. Currently, 25%-30% of all new permanent residents to Canada are derived from the family class stream.
Although not all applications are approved, Canada’s immigration laws provide permanent residents with a number of appellate review mechanisms under the Immigration Appeal Division (IAD), a court of equitable jurisdiction, to address refusals of sponsored applications for permanent residence on behalf of members of the family class on spousal relationship applications. Most appeals are contested and owing to the volume of such cases at the Immigration Appeal Division across Canada, can take approximately 12-18 months to conclude.
There are a number of family class sponsorship applications that are considered “red flag applications”, where CIC will often refuse such applications unless all of the “issues” are effectively addressed. One such case is the sponsorship application submitted under the common-law marriage rules. Although CIC makes it perfectly clear that common-law applicants may apply for sponsorship under the Family Class, the reality is they are often refused. This is a very problematic circumstance for some people, in that they are generally unaware of the almost systematic refusals that can occur if important issues are not properly addressed in the application. Even Immigration Canada’s application kits that are made available to those hoping to apply under this program, hints at this circumstance as a potential for refusal:
“(Refusals can result if) the relationship between you and your sponsor is for convenience only, that is you and your sponsor…entered into a common-law relationship to allow you to stay in (or come to) Canada.”
Clearly, this is a delicate area for any couple wishing to pursue a successful sponsorship application and a properly constituted application prepared by effective legal counsel may be a viable consideration.
Alternative Dispute Resolution Process
In some instances, appeals can take a shorter route under the Alternative Dispute Resolution process (ADR). This is an uncontested process whereby the Minister’s representative, a Canada Border Services representative and the applicant’s legal counsel will agree to approve an appeal on the basis that the previous concerns of the Visa Officer who rendered the negative decision are no longer in doubt. This can occur under a number of scenarios such as for example where an issue of criminality has been clarified, or no longer has an effect on the admissibility of the applicant to Canada; or where the Canadian sponsor and the foreign national previously applying under the Conjugal Relationship guidelines have legally formalized their marriage.
The ADR process can substantially shorten the appeal. The formal appeal is filed with the Immigration Appeal Division requesting consideration for ADR. Submissions are included to address the concerns of the Visa Officer that gave rise to the refusal. There is no standard processing time, but in general, the majority of spousal sponsorship appeals that are processed under the ADR mechanism are concluded within a year.
The essence of this process is to give an early opportunity to an applicant to resolve their appeal after being denied. For the applicant, it is a chance to discuss their case, tell their story and engage in discussion with a representative of the Minister. An experienced immigration lawyer can be invaluable at this stage, and can often address the important issues in order to maximize the opportunity for the application to be resolved favourably.
ADR is an informal process. The Dispute Resolution Officer (who is not an employee of CIC) allows all parties to discuss the issues raised by the refusal. The applicant and their council may ask questions and may provide whatever information that will help their case. This process is also confidential. Regardless of the outcome, it will not affect the applicant’s right to a full appeal hearing thereafter in the event that ADR does not result in positive decision. In other words, appeal applicants have nothing to lose under the ADR process.
There is no standard format for an ADR, as it is an informal meeting. But the general flow of the process is as follows: the parties meet, if an interpreter has been ordered, they will meet the parties there. An opening statement will be offered by the Dispute Resolution Officer. After this point the applicant or their council may tell their story. Here, they may underline the merits of their case. Council may provide a very meaningful role by presenting information and providing reference to applicable case law which the Dispute Resolution Officer can use to render a recommendation.
At this point, the Dispute Resolution Officer may ask a list of questions. According to the guidelines given to Dispute Resolution Officers when they are given their training, as well as questions drawn from our experience in dealing with this process, typical questions include; why is it important to you that your relative come to Canada? Tell us about your relationship and how it developed. What is your understanding as to why your sponsorship was refused? This is just a sample, and there are many other questions that may be asked. It is important to be very well prepared for this engagement, as it is a delicate process and can weigh heavily on the recommendation of the Officer.
After questions and further discussion, the Officer will evaluate the case on the standard of likelihood of success at the appeal hearing. Here, the Officer will recommend that the appeal continue or that it be withdrawn. If the Officer recommends that the appeal is withdrawn because the Officer believes that the case will not succeed at the appeal hearing, for either the applicant or the government, the applicants may nevertheless proceed to the formal appeal stage as the outcome of ADR does not bear on the actual appeal hearing. On the other hand, if the Officer believes that the applicant’s case will succeed at the appeal hearing then a positive recommendation will be rendered which is generally followed by the government.
ADR helps resolve about 60% of sponsorship appeals and, if pursued in an organized and thoughtful way by the applicant, this process saves time and reduces the anxiety that goes with the unknown of an appeal hearing. It is a good opportunity to have meaningful discourse with a representative of the Minister and to have the applicant’s side of the story told without all of the procedural hang-ups. Of course, the process is not straightforward, as evidenced by the number of negative recommendations that are rendered. But, with a strong case that is presented in a very well-organized and thorough way, the chances for success under ADR are significantly increased.
Interested readers with questions on the foregoing may contact Attorney Colin R. Singer by email at [email protected]