What must I show to win my appeal?
To win your appeal, you must show that the refusal to approve your spouse’s application is wrong in law or wrong in fact. That means that it is your responsibility to show that the visa officer made the wrong decision. It is your responsibility to show that your appeal should be allowed and not dismissed.
If the visa officer refused to issue a visa to your spouse because the officer believed that your marriage was not legal, then to win your appeal, you must show that it is a legal marriage in the country where you were married and in Canada. For example, you must show:
- The marriage law in the country where your marriage took place; and
- How you met the requirements of that law, as well as the marriage law in Canada.
If the reason for refusal was that the visa officer did not believe you had a genuine marriage, then you must show that your marriage is genuine or was not entered into primarily for the purpose of gaining any Canadian immigration status or benefit (this usually means getting permanent resident status for your spouse).
To decide this, the Member may consider evidence about:
- How you met your spouse and how your relationship developed;
- The circumstances of your engagement and marriage, including the knowledge and involvement of your families;
- What you did after you got married, including the contact you have had with your spouse;
- What you know about each other;
- What you plan for your future together; and
- Any other information that may help the Member decide your appeal.
There may be other reasons that the visa officer gives for refusing your spouse – the Immigration and Refugee Protection Regulationssets out some situations where a spouse will be seen as not belonging to the family class, and therefore not be able to be sponsored to Canada (see section 117(9) of the Immigration and Refugee Protection Regulations).
You should come prepared to deal with all of the reasons the visa officer gave for refusing your spouse’s application. But the Minister’s counsel or the IAD Member may also ask you questions about anything dealing with your marriage and your relationship with your spouse.
It is important to know that for sponsorship appeals of marriage cases, the IAD Member can only decide if the refusal is legal. The Member is not allowed to consider whether there are humanitarian and compassionate reasons for allowing your appeal.
Do I have to provide any documents for my hearing?
Documentary evidence can be very important in helping you win your appeal. If one of the issues in the appeal is whether your marriage is legal, you must give evidence about the marriage laws of the country where you were married, and that your marriage was legal. This may be done by with documents from an expert (such as a lawyer or other expert who knows the marriage laws of that country). If one of the issues in your appeal is whether your marriage is genuine, then you may provide documents such as letters, telephone bills, photographs, videocassettes, airline tickets, passports, receipts for gifts or money sent by either spouse, etc.
If you would like to provide documents, you must make two copies of each document (including any photographs or videocassettes). You must provide one copy to the Minister’s counsel. You must also provide one copy to the IAD registry office, together with a statement of how and when you provided the documents to the Minister’s counsel. The addresses of the IAD and CBSA/ CIC offices are in the letters or other notices that the IAD sends to you after you have filed your appeal. The documents must be received no later than 20 days before the hearing.
Before your hearing, the Minister’s counsel will have provided you and the IAD with the appeal record. These are the documents in the CBSA/ CIC file that are related to your appeal. The Minister’s counsel may also provide other documents for the hearing, no later than 20 days before the hearing. You have a chance to provide documents in response to the documents from the Minister’s counsel – these documents must be received no later than 10 days before the hearing. This exchange of documents is called “disclosure.” If you or the Minister’s counsel do not disclose documents properly, then those documents cannot be used at the hearing unless the IAD Member allows this to be done.
If your documents are not in English or French, they must be translated. The translations and a translator’s declaration must be provided together with the copies of the documents to the IAD and to the Minister’s counsel. The translator’s declaration must include:
- the translator’s name,
- the language translated and
- a statement signed by the translator that the translation is accurate.
Even if you have provided copies of your documents before the hearing, you should bring the original documents to the hearing if you have them.
Can I bring witnesses?
You may bring witnesses to your hearing if you think this will help your appeal. Witnesses must be prepared to answer questions at your hearing (this is called testifying or giving testimony).
No later than 20 days before the hearing, you must provide certain information regarding your witness to the IAD and the Minister’s counsel. In writing, you must:
- state the witness’s contact information (address, and telephone and fax numbers),
- how long the testimony will take,
- your relationship to the witness, and
- whether you want the witness to testify in person, by videoconference or by telephone.
If the witness is an expert, you must also include a report signed by the expert giving their qualifications and summarizing their evidence.
If you do not properly provide the witness information, the witness will not be able to testify unless the IAD Member allows the witness to testify.
It is your responsibility to make sure your witness or witnesses appear at your appeal hearing. To make sure that your witness will appear, you may ask the IAD registry office for a summons, which is an IAD order to appear at the hearing that the witness must obey. There are special rules for providing a summons to a witness, along with witness fees and travel expenses – for further information, contact the IAD registry office.
What if I need an interpreter?
If you or any of your witnesses need an interpreter, you must notify the IAD registry office either in writing no later than 20 daysbefore your appeal hearing, or in person at the scheduling conference (Assignment Court). You must indicate the language and dialect (if any) that you or your witness needs. The IAD will provide an interpreter for your hearing at no cost to you.
What if my witness is not in Canada?
If your spouse or any other witness is in another country, you may ask the IAD Member to allow that witness to testify at your appeal hearing by telephone. You must tell the IAD before the appeal hearing, and you must make sure that your witness can be reached by telephone at the time of your hearing. Since you must pay for the call, you must bring a calling card from your telephone company that you can use to charge the call to a telephone number, or bring a reliable long distance phone card. Note that the IAD will not allow you to use any phone card with less than two hours’ international calling time available. Also, some companies’ calling cards may not work very well, and if there are problems, the IAD Member might decide to go ahead without hearing from your witness.
Where will my appeal hearing take place?
Your appeal hearing will take place at the Immigration and Refugee Board (IRB). The IRB is an independent tribunal. It is not part of the Immigration department, also known as Citizenship and Immigration Canada (CIC), and it is not part of the Canada Border Services Agency (CBSA).
Who will decide my appeal?
A Member of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) will decide your appeal.
Who will be at my appeal hearing?
The IAD Member, who will decide your appeal, will be seated at the front of the hearing room. You (the appellant) will be there with or without your counsel, depending on whether you chose to have someone represent you. There will also be a Minister’s counsel from the Canada Border Services Agency (CBSA) who may provide evidence, ask questions to you and other witnesses, and make arguments against your appeal. Any witnesses that you or the Minister’s counsel bring to testify (give oral evidence) will also be at the hearing. An interpreter will be there for you or any of your witnesses, if you have asked for one. Members of the public are also allowed to attend.
Do I need someone to represent me in my appeal?
You do not have to have someone represent you, but you may if you think that this will help your appeal. There are often legal questions that need to be argued in the appeal and you need to make sure that your case is well supported by providing enough evidence. You should also know that the Minister’s counsel will be at your hearing to question you and other witnesses, and make arguments against your appeal. If you have someone to represent you, such as a lawyer or a consultant, friend, relative, or trusted member of your community, that person must be available and prepared on the date of the appeal hearing.