Operational Bulletin 396 – March 07, 2012

Instructions to Visa Officers on Making Determinations on Membership in the Family Class  

Summary

This Operational Bulletin (OB) provides instructions to visa officers. It instructs them on the process to follow when they assess applications submitted for permanent residence. The applicants would need to submit these applications as members of the Family Class (FC).

In this scenario, officers would need to make a decision as to whether the applicant is a member of the Family Class (FC). This process would apply in all the Family Class (FC) cases.

Background

Citizenship and Immigration Canada (CIC) has the authority to determine whether an applicant is a member of the Family Class (FC).

A foreign national is a member of the Family Class (FC), if the foreign national is the sponsor’s:

• Spouse
• Common-law partner or
• Conjugal partner

This is in accordance with Section 117 (1) (a) of the Immigration and Refugee Protection Regulations (IRPR). If the applicant meets this definition, the visa officers would be able to issue the visa easily.

In some cases, the visa officers might determine that the applicant is not a member of the Family Class (FC). In this scenario, the sponsor has the right to appeal to the Immigration Appeal Division (IAD). This is in accordance with Section 63 of the Immigration and Refugee Protection Act (IRPA).

The Immigration Appeal Division (IAD) remains limited to considering whether the officer’s determination is correct. That too, on a de novo basis. However, they would only do this when a visa officer refuses a Family Class (FC) application on the basis that the applicant is not a member of the Family Class (FC).

The Immigration Appeal Division (IAD) will have no further jurisdiction if:

• The Immigration Appeal Division (IAD) finds that the officer’s decision is correct and,
• The Immigration Appeal Division (IAD) verifies that the applicant is not a member of the Family Class (FC)

In some situations, the Immigration Appeal Division (IAD) can only consider Humanitarian and Compassionate (H&C) considerations. However, it would only do so if the officers have determined that the applicant is a member of the Family Class (FC).

This is in accordance with Section 65 of the Immigration and Refugee Protection Act (IRPA) that states:

In an appeal under subsection 63 (1) or (2) respecting an application based on membership in the family class, the Immigration Appeal Division may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class…

The Instructions

The visa officers would need to make a decision about whether the applicant is a member of the Family Class (FC) or not. They would do this in all Family Class (FC) cases. To arrive at a decision, the visa officers would consider all the information provided by:

• The applicant and,
• The sponsor

The information reviewed could also include any information gathered during the interviews.

After making the decision, the visa officers would need to record the decision clearly in the case notes. Omitting this step could result in the Immigration Appeal Division (IAD) allowing the appeal based on Humanitarian and Compassionate (H&C) considerations.

Visa officers would need to follow the following instructions for all Family Class (FC) overseas applications. They would need to:

• Assess the application for determining whether the applicant is a member of the Family Class (FC)
• Process the application as per the instructions specified in the overseas processing manual (OP 2) if:
• The applicant meets the admissibility requirements and,
• The officers deem the applicant as being a member of the Family Class (FC)
• Send a refusal letter to the applicant and the sponsor, outlining the reasons for inadmissibility, in accordance with the instructions specified in Section 19 of OP 2 i.e. Notifying sponsors of appeal rights, if:
• The officers deem the applicant as being a member of the Family Class (FC) and
• The applicant does not meet the admissibility requirements
• Send a refusal letter to the applicant and the sponsor, explaining:
• The findings of the Family Class (FC) assessment and,
• Any reasons that might exist for inadmissibility
• However, officers would only do this when they deem the applicant as not being a member of the Family Class (FC)

For more details on this, officers would need to refer to:

• OP 2 (i.e. Processing members of the Family Class (FC)) and,
• Section 8 of OP 21 (i.e. Family Class (FC) sponsorship appeals)

Source: Citizenship and Immigration Canada (CIC)