APPEAL TO IMMIGRATION APPEAL DIVISION

If your spousal application has been refused outside Canada for permanent residency under subsection 12(1) of the Immigration and Refugee Protection Act (IRPA) states a foreign national may be selected as a member of the family class on the basis of their relationship as the spouse, or other prescribed family members of a Canadian citizen  or permanent resident.

Paragraph 117(1)(a) of the IRPA states that a foreign national is a member of the family class if, with respect to a sponsor, the foreign national is the sponsor's spouse, common-law partner or conjugal partner.

Subsection 4(1) of the IRPA states that for the purposes of these Regulations, a foreign national shall not be considered a spouse, of a person if the marriage 

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act;

or

(b) is not genuine.

You have 30 days to appeal the decision to Immigration Appeal Division from the time you received the decision. Once Notice of Appeal is acknowledged by IAD, CBSA has 60 days to produce the record which they are relying upon for refusal of the application and then you and/or your counsel has 60 days to respond with documentary evidence if you failed to do so, the case will be declared abandoned.

The case law which will assist you in preparing for your appeal are as follows;

1. Gill v. CIC.

In misrepresentation cases, you may rely on the following case laws;

1.  Punia v. Canada

2.  Koo v. Canada (MCI), 2008 FC 931 

3.  Medel v. Canada (MEI), [1990] 2 FC 345 4. Baro v. Canada (MCI), 2007 FC 1299

5. Merion-Borrego v. Canada (MCI), 2010 FC 631 

If your permanent residency has been refused under Subsection 63(1) of the the Immigration and Refugee Protection Act (IRPA) allows a person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family to class to appeal Immigration Appeal Board against a decision not to issue the foreign national a permanent resident visa.

If the Appeal Division finds that an applicant is not a member of the family class, and/or that the sponsor is not a sponsor within the meaning of the Regulations, the Appeal Division will only have jurisdiction to consider the appeal under subsections 67(1)(a) and (b), that read:

Subsection 67(1) to allow an appeal, the IAD must be satisfied that, at the time the appeal is disposed of, 

(a) The decision appealed is wrong in law or fact or mixed law and fact;

(b) A principal of natural justice has not been observed(...)  

If your permanent residency application have been revoked due to criminal conviction and you want the removal to be "stayed".

If your permanent residency application for Parents and Grandparents have been refused due to insufficient income (MNI), not Low-Income Cut-Off (LICO). The refusal can be appealed at Appeal Division of IRB. 

The refusal can be challenged in law (error in law or on humanitarian and compassionate grounds or both), the guiding principles in these cases are primarily addressed through jugpall decision of Federal Court of Canada or chirva decision. 

However, if you're challenging the legal validity of the refusal, you want to ensure that not only you are meeting the minimum income threshold  at the time you applied but even at the time you are appealing the decision because the concept of hearing de novo will apply and the income declared has to be substantiated by ample audit trail (simply having income on the Notice of Assessment is not enough).

If your permanent residency has been refused under Section 28 of the [IRPA] states:

28(1) A permanent resident must comply with a residency obligation with respect to every five-year period.

(2) The following provisions govern the residency obligation under subsection (1):

(a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are

(i) physically present in Canada, ...

Pursuant to section 67(1)(c) of the IRPA, the Appellant has the onus of establishing, taking into account the best interests of a child directly affected by the decision, that sufficient humanitarian and compassionate considerations exist that warrant the granting of special relief.

The following factors are usually considered by the IAD in the exercise of its discretionary jurisdiction in residency obligation appeals. These factors are not exhaustive.

These factors are:

• the extent of non-compliance with the residency obligation;
• the length of time spent in Canada and the degree to which the Appellant is established here;
• the reasons for the Appellant leaving and remaining outside of Canada and the timing of the Appellant's visits to Canada.
• the best interests of a child directly affected by the decision;
• hardship to family members in Canada if the Appellant was required to leave Canada;
• the degree of hardship that would be experienced by the Appellant in remaining in her country of citizenship.