A specific question about Spousal sponsorship

[computergeek]

Well...according to the CIC web site, there's no appeal option

Yes. And according to the CIC website I wasn't allowed to apply in the spousal category due to my previous determination of inadmissibility. The CIC website is not always correct.

72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court.

Source: IRPA (http://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-26.html#h-30)

It would seem to me that if they did have an appeal option, they wouldn't go out of their way to specifically tell you "no right of appeal".

There is "no right of appeal [to the Immigration Appeals Division]" which is what most people think of when they say "appeal" in the context of immigration applications, because the IAD may consider H&C grounds for granting relief. The Federal Court may not consider H&C grounds - they review law and procedure only.

In my case, I found the following text on the CIC website:

The person being sponsored must resolve the circumstances that resulted in the inadmissibility before submitting an application for permanent residence.

Source: http://www.cic.gc.ca/english/information/applications/guides/5289ETOC.asp

In my first application I was deemed (by CIC) to be inadmissible. While I disagreed with that determination (and went to Federal Court for it and was granted leave) that was their decision. The CIC website said I couldn't apply in the spousal category until it was resolved - even though it was not grounds for inadmissibility for a spousal application.

So I have personally found cases where the CIC website says things that are not true as a matter of law. Plus, I would note that they did not refuse the spousal application as a result of the inadmissibility.

Okay, so where on the CIC web site did you read this regarding SPOUSAL applications?
The only mention of "judicial review in a federal court" that I could find was in the REFUGEE section:

http://www.cic.gc.ca/english/refugees/inside/appeals-review.asp

But nothing even remotely similar exists in the Family Sponsorship section that I could find.

The best source of information about this (restricting to the CIC website) is OP 22 "Judicial Review".

http://www.cic.gc.ca/english/resources/manuals/op/op22-eng.pdf

It also describes the difference between an IAD appeal and a Federal Court judicial review. I agree that IAD appeals have broader grounds (the IAD can consider H&C information and they can make their own decision) but for many of the simple cases on here the right to argue H&C grounds isn't really that substantial.

For example, I just answered a question for someone on a 125(1)(d) issue. In that case, the individual was declared by the sponsor as part of the sponsor's original application and the VO excluded the (now) applicant as a member of the family class.

Let's just suppose that CPC-M (or the VO) rejects this application on a 125(1)(d) basis. They can appeal to the IAD OR to Federal Court. IAD will take them 2 years. Federal Court will take them 6 months. Both tribunals will be bound by exactly the same constraints, since the IAD cannot consider H&C in this case either. Either tribunal would likely reach the same conclusion I did based upon those facts: that the 125(1)(d) finding is incorrect as a matter of law when the visa office is the one that excluded the applicant from the family class.

IAD decisions ("appeals") can be reviewed by the Federal Court and I have read some FCC decisions of IAD decisions.

There are times when the ability to argue H&C applications is a net win. For example, a case I recently read: http://canlii.ca/t/fkj07

So, CIC says "no right of appeal" because they mean "to the IAD". For a case that is unlikely to need to make H&C arguments, I personally don't see the loss of IAD appeal rights in an inland application to be particularly risky.

 

[tuyen]

There is "no right of appeal [to the Immigration Appeals Division]" which is what most people think of when they say "appeal" in the context of immigration applications, because the IAD may consider H&C grounds for granting relief. The Federal Court may not consider H&C grounds - they review law and procedure only.

Okay, but then you're talking about having to take matters into your own hands by hiring a lawyer and taking the government to court due to the fact that you have no option for an appeal internally within the immigration system.

Not only is this going to be a very expensive ordeal that most people won't be able to afford, but will also stand a very small chance of succeeding, in my opinion. If it worked in your particular case, that's a good thing, but I'm willing to bet that yours was the exception, rather than the rule.

Wouldn't it be far simpler to file an outland application, knowing that you have a much simpler pathway to an appeal if it should become necessary?

 

[canadianwoman]

The ordinary immigration appeal that we all talk about is only for outland applications. If you lose your appeal, you can continue by asking for a judicial review, though it seems not many people do. If you disagree with the decision made on an inland application, then your first step is to ask for a judicial review.

I was talking to a federal judge recently who does judicial reviews, and he said that because they were dealing with people's lives - whose spouse can or cannot come to Canada, whether a child can come to Canada, a refugee where if the judge makes a mistake may be tortured or killed when returned to his/her homeland, etc. - he always tried to give people the benefit of the doubt. That even if the law said one thing, he would try to interpret the law in such a way as to help the person if possible.

After hearing him speak, I wish that I had gone to a judicial review after our failed appeal. He seemed like a kind man who would not just blindly apply the law without thinking about the effect on a family.

 

[computergeek]

Okay, but then you're talking about having to take matters into your own hands by hiring a lawyer and taking the government to court due to the fact that you have no option for an appeal internally within the immigration system.

Not only is this going to be a very expensive ordeal that most people won't be able to afford, but will also stand a very small chance of succeeding, in my opinion. If it worked in your particular case, that's a good thing, but I'm willing to bet that yours was the exception, rather than the rule.

Wouldn't it be far simpler to file an outland application, knowing that you have a much simpler pathway to an appeal if it should become necessary?

I don't think this is a single issue decision. For some people there is considerable value in the ability to remain in Canada during the sponsorship, and to obtain that work permit 6 months after the initial filing. Further, worrying about a risk of something that is unlikely in the vast majority of cases does a poor job of risk/reward analysis.

According to the CIC numbers presented with their latest "anti-marriage fraud" initiative (the two year spousal requirement) an outland application is more than twice as likely to be refused as an inland application (17% versus 8%).

So, you trade the ability to spend 2+ years waiting for an appeal (IAD) against the increasing chance of a refusal. Further, the category of refusals I've seen discussed on here most frequently are those that exclude the spouse from membership in the family class. IAD doesn't have the ability to consider H&C grounds in such a case and thus they become comparable to the Federal Court, deciding issues of law.

Neither IAD nor FCC encourage people to come before them without counsel. Neither prohibits it. You are correct that the Federal Court involves an additional fee ($50), so perhaps for some people this will be the deciding factor to file outland versus inland. I have read a number of FCC cases that review IAD decisions and some of them are successful - so it's quite possible to lose with the IAD and still be forced to go to Federal Court. Indeed, many of the cases I've reviewed in the area of medical inadmissibility came through the IAD before they ended up in Federal Court.

Bottom line: the decision to file inland versus outland is certainly not as simple as "you keep the right to appeal to the IAD". This is a decision that really is specific to the cirumstances of the case. For a sponsorship without any serious concerns (e.g., no inadmissibilities) I'd suggest that the "right of appeal" is not much of a factor.

As for my case, we didn't need to appeal - my trip through federal court was related to my refused skilled worker case and Federal Court was the only option. My spousal sponsored application was filed outland because of my previous refusal and my concern that it might be used to refuse me re-entry into Canada, which would force abandonment of an inland application. The spousal application was not refused despite my prior refusal. If anything, the process was completed more quickly because of my federal court action.

 

[tuyen]

According to the CIC numbers presented with their latest "anti-marriage fraud" initiative (the two year spousal requirement) an outland application is more than twice as likely to be refused as an inland application (17% versus 8%).

Where did you find those numbers? I'd be interested in showing them to somebody who is currently debating whether to do inland or outland.

So, you trade the ability to spend 2+ years waiting for an appeal (IAD) against the increasing chance of a refusal.

But don't forget that there are some people from certain countries who would stand a very low chance of ever getting into Canada in the first place on a visitor's visa, so for them, the only conceivable option to enter the country is through an outland spousal application. Sure, it'd be great to be able to do the inland application and stay together during that time, but getting into Canada for some people is a lot harder than for others.

 

[computergeek]

It took a bit of digging to find them again. I was able to (quickly) verify the 17% number against the open data project information, but I haven't been able to confirm the 8% number from anything other than the legislative backgrounder article (yet).

Firm figures on the extent of relationships of convenience are not available. What is known is that about 46 300 immigration applications for spouses and partners were processed in 2010 (39 800 from abroad and 6500 from within Canada). Of these, about 16% (8% of inland applications and 17% of overseas applications) were refused. It is estimated that most of these cases were refused on the basis of a fraudulent relationship. Others were refused on the basis of criminality, security, medical issues and sponsor ineligibility.

Source: http://www.cic.gc.ca/english/department/media/backgrounders/2012/2012-10-26.asp

I certainly understand there are people for whom outland is the only option and in that case they certainly don't have the luxury of an inland application. But for those who do have the choice, it isn't actually that clear that filing outland is automatically the right choice. If it's a fast visa office (e.g., London, Beijing, or Paris) then it makes sense. But it's not clear to me if it makes sense for US applicants right now. Comparing the two options only makes sense for those who have the ability to pursue either option.

My only point is that, given the choice, I don't see the right to an IAD appeal to be the deciding factor. Many people come to Canada and wait out the process on a visitor record, which has its own subtle costs (nothing like adding financial stress to a new relationship to make things challenging, for example.)

 

[tuyen]

It took a bit of digging to find them again. I was able to (quickly) verify the 17% number against the open data project information, but I haven't been able to confirm the 8% number from anything other than the legislative backgrounder article (yet).

Source: http://www.cic.gc.ca/english/department/media/backgrounders/2012/2012-10-26.asp

Thanks for digging it up again - I really appreciate it.