We sat down with Alastair Clarke, Barrister & Solicitor, to discuss ways to win a Spousal Sponsorship Appeal. Mr. Clarke has handled many of these over the years. Hopefully, these questions and answers will help you and your family reunite in Canada.
A: Good question. As I learned from my mentor, Mendel Green, Q.C. (a.k.a. the Godfather of Canadian Immigration Law), the most important factor is PREPARATION. The Sponsor and the Applicant will both provide oral testimony at the tribunal. The representative of the government will be cross-examining both of them, as well as any other witnesses. The cross-examination may be thorough and they may ask questions about any aspect of the application. Credibility is frequently a big issue at the hearing. In addition to the cross-examination, the Member (ie. Judge) may also ask probing and direct questions of the Sponsor, Applicant and witnesses. In my experience, the best way to prepare for the hearing is to prepare, prepare and prepare!
The biggest difference between a successful case and a refusal is preparation.
Q: What are the most common reasons for refusal?
A: I won’t be able to discuss all the reasons that I seen applications refused but I can cover the most common reasons why Spousal Sponsorship applications are refused:
- Genuine Marriage – the CIC Officer determined, for a variety of reasons that the relationship was not real and the subsequent marriage is not genuine. This is surely the most common reason that applications are refused.
- Primary Purpose test – the CIC Officer determined that the marriage was entered into primarily for immigration purposes. This has become increasingly common and it is a common reason for refusal for Arranged Marriages.
Q: What happens at the Tribunal?
A: The hearing at the tribunal, the Immigration and Refugee Board, Immigration Appeal Division, is a hearing de novo. “Hearing de novo” is a legal term that means that the tribunal makes a new determination based on everything that has happened with the individuals right up to the time of the hearing. In other words, the tribunal is not limited to the documents that were sent to CIC the time of the application. In other cases, lawyers are restricted to rely only on evidence that has been previously submitted to the original decision-maker and we cannot submit new evidence. The fact that Spousal Sponsorship appeals are hearings de novo is a significant tool for us to win cases.
Q: What is the craziest case you have handled?
A: I have handled many “crazy” cases over the years. Back in 2007, when I was an articling student at Green & Spiegel LLP in Toronto, I helped a couple from Hungary whose Spousal Sponsorship was refused. The husband was 70 years old and his spouse was 19 years old at the time. The husband had been married many times before in Canada and he was getting back to his roots in Hungary. We called many witnesses at the IAD and the best witnesses were the parents of the spouse. They were much younger than the husband but they got along with him very well. They gave extensive testimony about how he treated her as his wife and they were fully supportive of the relationship. Despite the 51 year age difference, we won the appeal.
Sometimes the “crazy” cases seem very normal at first. Another case I handled involved a sweet couple from India. On paper, they were the perfect couple. They came from families who were very well connected and they had known of each other for many years prior to the marriage. Their wedding was a large, traditional ceremony with more than 1000 people who celebrated. They provided extensive evidence of their history and their relationship.
Q: So why was that one refused?
A: I did an investigation into the application and discovered that the bride’s sister was promised to a man from another family. At the last minute, she refused to get married and he was deeply affected. His family was very angry and they sought revenge. We discovered that his family called the Canadian Immigration Hotline and they reported that the marriage of my clients was a sham. The CIC Officer took notes and included a “poison pen letter” in the file with details.
Q: Did you win?
Q: What is the biggest challenge with Sponsorship Appeals?
A: One challenge is the long wait. From the time we file the Spousal Sponsorship appeal, it can take up to 18 months until we actually have our hearing at the tribunal. During these 18 months, we advise our clients to be with their spouse and/or their families. It is very important that they maintain a strong relationship right up to the date of the hearing. We work with the IAD to get a positive result as quickly as possible.
Q: Which case are you most proud of?
A: I love these appeals. Helping couples reunite in Canada is one of the best parts of my job. Over the course of the many months before a hearing, I get to know the families and the couple very well and it is a pleasure to be part of their lives.
One case that stands out is a case we won quite recently. The Sponsor is a refugee who has suffered medical issues and she is unable to birth a child. She met an old friend who had a son with a previous relationship. The Sponsor fell in love with her old friend and his son and they dreamed of having a life together in Canada. She filed the Sponsorship application but it was refused because the CIC Officer did not believe the marriage was genuine. This was a complex case and we called many witnesses. There were issues with interpretation and credibility. Part of the problems was that she had previously tried to sponsor a spouse and she admitted that it was only for immigration. In the end, we won the appeal and our client is with her son in Canada. Her husband (the Applicant) will be joining them soon.