If a Canadian or permanent resident submits an application to sponsor a foreign national as a member of the family class, a refusal of said application can, in most cases, be appealed to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB). However, where a person has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality, organized criminality or misrepresentation, no right of appeal exists. In the case of misrepresentation however, the appeal right is not lost where the foreign national is the sponsor’s spouse, common-law partner, or child. The right is also lost when an application is submitted under the Spouse and Common-law Partner In Canada (SCLP) Class.  Where the right to appeal has been lost, a person may consider challenging the decision by way of Judicial Review.  

 

Hearings before the IAD are ‘de novo’ meaning the sponsor will be allowed to introduced fresh evidence that were not necessarily before the officer, to strengthen their case. To initiate the appeal, the sponsor must file a Notice to Appeal within 30 days.  A copy of the Appeal Record will then be provide once produced, followed by further instructions from the Board leading up to the hearing. Counsel may also advance, and the Board may consider humanitarian and compassionate grounds in support of the appeal however, it must first be determined that the spouse has met the definition in the Act and the persons sponsored is a member of the family class.

 

If the application is allowed, the decision to refuse the permanent resident application will be cancelled, and IRCC will resume processing the visa application. On the other hand, if the appeal is dismissed, the refusal will stand. In such case, the applicant may consider challenging the decision before the Federal Court.