If a visa office has refused your spouse, child, or parent, the refusal letter is written to them, but the right of appeal belongs to you, the sponsor. Your family member overseas cannot file. Thirty days is not much time when you are also trying to take in what the refusal means, so it helps to know this at the outset.
A sponsorship appeal is a rare kind of second chance in immigration law. It is a real hearing in front of a member of the Immigration Appeal Division (IAD), a part of the Immigration and Refugee Board. You can usually bring new documents, testify, and call witnesses. In some cases, you can ask the member to look beyond the legal test altogether and consider humanitarian grounds. For many families in Brampton separated from a loved one, this forum offers something a paper-based application cannot: the chance to be heard.
This article is general information, not legal advice on your appeal. IAD rules, forms, and practice notices can change, and you should check the Board’s website for the current version.
Who Has the Right to Appeal
Subsection 63(1) of the Immigration and Refugee Protection Act gives the right to a person who has filed a family class sponsorship application in the prescribed way, against a decision not to issue the foreign national a permanent resident visa. Some useful consequences follow from this.
- The sponsor appeals, not the applicant.
- It must be a family class application. The Spouse or Common-Law Partner in Canada class has no such appeal, so a refusal in that class usually means asking the Federal Court to review it, or considering a new application.
- There must be a decision. A sponsor who withdraws the application gives up the right to appeal, which is one reason to think hard before agreeing to a suggestion that you withdraw.
- Economic, visitor, study, and work permit refusals are not covered by this appeal, though some of these can go to Federal Court.
Your relative’s file might also be refused because you, the sponsor, are found ineligible. IRCC should tell you about your appeal right in that situation, and that sort of appeal comes with its own limitation, as we will see.
When There Is No Appeal
Section 64 closes the door in several situations. No appeal may be made where the foreign national or the sponsor has been found inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality, or organized criminality. For this purpose, serious criminality means a crime punishable in Canada by at least six months in prison, or as described in paragraph 36(1)(b) or (c). That wording is technical, so have someone read it against the exact finding in your letter.
There is also an appeal bar for misrepresentation, with an important exception: the appeal stays available where the foreign national is the sponsor’s spouse, common-law partner, or child. A parent or grandparent refused for misrepresentation generally cannot appeal to the IAD. Where the IAD cannot help, the Federal Court might be the only review available, and its deadlines are much tighter, at 60 days for a matter arising outside Canada and 15 days for one arising in Canada.
The 30-Day Deadline
The IAD must receive your notice of appeal and required documents within 30 days of when you received the refusal letter. Note the word “receive.” It is not enough to mail it on day 30.
Your notice package consists of:
- The completed notice of appeal, sponsorship form.
- A copy of the IRCC refusal letter sent to your family member.
- A copy of the officer’s decision notes, if you have them.
- Anything else that might help resolve the appeal, which is optional at this stage. This could include a document that the refusal said was missing and that you now have.
Send it to the IAD regional office that serves your province. The Board’s website lists current addresses and email options. Keep proof of what you sent and when. If you find yourself past the deadline, contact the IAD and seek advice immediately. Do not assume that time has run out for good until someone has looked at it. The notice itself doesn’t require a full legal argument, so file on time and build your case afterward.
Your family member’s refusal letter may have taken some time to reach you, or may be in a language you don’t read easily. Make a note of when and how you actually received it. If a relative overseas holds the letter, ask them to scan and send it to you immediately.
The Three Grounds for Allowing an Appeal
Section 67 lets the IAD allow an appeal if, at the time it decides, it finds one of the following:
An error of law or fact. The officer got the legal test wrong or was mistaken about the facts. In a spousal case, this usually means the member concludes that the marriage is genuine and was not entered into primarily for immigration. In a parent sponsorship based on income, the question is whether the sponsor met the required income.
A breach of natural justice. The process was unfair. An example would be an officer relying on material the applicant had no chance to respond to.
Humanitarian and compassionate grounds. The member may find that, taking into account the best interests of a child directly affected, sufficient humanitarian and compassionate considerations justify special relief in light of all the circumstances. A parent’s illness, the length of separation, a sponsor’s disability, ties in Brampton, and the effect on children may all be relevant, depending on the facts.
The words “at the time it decides” matter a lot. Facts can improve while the appeal is pending. An income shortfall may have closed, a default may have been repaid, or a couple may have a child. A hearing is generally a fresh look, and you are not stuck with the record the officer had.
The Limit on Humanitarian Relief
Section 65 sets a key limit on the third ground. The member cannot consider humanitarian factors unless they first decide that the foreign national is a member of the family class and that the sponsor meets the definition of a sponsor in the regulations.
Consider three hypotheticals. A woman in Brampton sponsors her son, who was left off her own permanent residence application. If the son is excluded from the family class under the excluded family member rule, the IAD cannot grant humanitarian relief, regardless of how compelling the family’s story is. A man sponsors a wife whose marriage the officer found not to be genuine. If the member agrees, she is not a spouse, and the humanitarian door remains closed. Compare a sponsor refused for failing to meet an income requirement: there the applicant may be a family member, and humanitarian grounds may become central.
This is why it is important to look at the exact reason for your refusal first. If you can only win on humanitarian grounds, ask at the start whether section 65 will even allow the member to consider them.
What Happens After You File
The IAD sets out seven steps, and the most pressing dates come early.
The appeal record. After the IAD receives your notice, the Minister has 60 days to send you and the IAD the sponsorship file, including the reasons for refusal. Read every page. It counts as evidence. It may contain interview notes, forms from years earlier, or information you have never seen.
Your disclosure. Your documents are due to the IAD and the Minister’s counsel within 60 days of receiving the appeal record. The IAD will confirm the date in a letter. If you need more time, ask in writing and explain why. If you will not be providing documents, tell the IAD in writing. Doing nothing can lead to the appeal being dismissed or declared abandoned. Late documents might not be admitted unless the member allows them.
Responsive documents. You may file a document answering the other side’s evidence after the deadline, but no later than 30 days before your hearing.
Informal resolution. Many appeals go through an informal resolution process before a hearing. The Board’s process can resolve an appeal where, for example, your new evidence plainly answers the refusal and Minister’s counsel agrees. If resolved, it saves months and a difficult hearing. There is no obligation to accept a proposal you do not agree with.
Preparation help. The Minister is represented by a Canada Border Services Agency officer called Minister’s counsel. If you are representing yourself or your counsel is unpaid, you may be invited to a virtual meeting with an Early Resolution Officer, who can explain the steps but cannot give you legal advice.
The hearing and decision. A member hears the evidence, usually including testimony from the sponsor and often the applicant, and decides. If the appeal is allowed, the member can set aside the refusal and substitute the decision that should have been made, or send it back. Under section 70, the officer who deals with the file next is bound by the IAD’s decision. The applicant must still meet other requirements, so a win does not end every process.
If the appeal is dismissed, you may seek leave for judicial review in Federal Court, within the time limits in section 72.
Keeping Contact and Staying in the Process
An appeal can be lost for a reason that has nothing to do with its merits. If you, or your counsel, do not respond to the IAD, it can dismiss the appeal or find it abandoned. Keep your contact information current using the Board’s notification form, and check your email and spam folder, particularly if you have moved around Peel Region during the appeal.
Be careful, too, with travel or anything that might complicate your testimony. Appellants are expected to be available on the hearing date. Where someone must give evidence from abroad, or you need an interpreter, raise it as early as you can, in the way the Board directs.
Preparing the Evidence
Each kind of refusal calls for its own evidence.
Genuineness of a relationship. The member focuses on credibility, usually on how consistent your testimony and your spouse’s are with the documents and with each other. Evidence of ongoing contact, visits, financial support, and family involvement helps. It is often the details that convince or undo: how you met, why the wedding was arranged when it was, what you know about each other’s daily lives. Go back through the interview notes and earlier applications before you testify. Do not rehearse a script, because rehearsed answers are easy to recognize.
Income shortfall. Bring notices of assessment for the required period, and consider whether your position has changed since. If you are asking for humanitarian relief, prepare proof of the applicant’s condition, your relationship and support over time, and the effect of the separation on the family, including children.
A prior default or eligibility issue. Provide clear evidence that the issue has ended, such as a statement of the debt, proof of payment, or a Family Responsibility Office record. This is often where events after the refusal make the biggest difference.
Humanitarian relief. Letters, medical records, school records, and evidence of a child’s relationship with the absent parent are all useful. A letter that sets out specific facts and is signed by someone who knows them is better than a general testimonial.
Translated documents should follow the Board’s requirements, and interpreters must be arranged properly.
Thinking It Through as a Family
Sometimes the better route is a fresh sponsorship with an improved file, especially when the refusal came from a simple documentary problem. An appeal can take a long time, and families sometimes consider running parallel steps. Before you withdraw or file a second application, ask how it affects your appeal.
If a marriage is the issue, remember also that a future application may be judged on everything said in the current appeal. Be consistent and truthful, and bring up difficult facts at the time you prepare, instead of hoping they do not come up.
An appeal is a real hearing with real consequences, and many families choose to be represented. If you would like advice on whether to appeal, how the record reads, or how to prepare, our permanent residence page and other immigration services page give some background, and you can contact Sawan Law House LLP. No one can tell you in advance what a member will decide, but you can file on time and arrive with a well-organized case.