Spousal sponsorship

[tuyen]

What classifies as "being a student"?

It depends who's asking, and for what purpose.

 

[computergeek]

You can't submit additional evidence once the application has been processed.

I must respectfully disagree with this representation. The hearing before the IAD is de novo and new evidence may be presented.

Due to the de novo nature of IAD hearings, hearings officers will often have different evidence to consider and present to the IAD than that considered by the original decision-maker. New evidence is often introduced
through documentation at the hearing.

Source: ENF 19 "Appeals before the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB)" - http://www.cic.gc.ca/english/resources/manuals/enf/enf19-eng.pdf

A secondary source:

An Appeal at the Immigration Appeal Division is presided by a Board Member (or Panel Member) which will review the decision of the immigration officer, visa officer or CBSA officer along with the updated documentation submitted by the parties. As the Immigration Appeal Division considers new evidence, this type of Appeal is called de novo. A Board Member will not, for example, grant or issue a Visa in an overseas case. Should the Board Member “allow” the appeal in such a case, the matter will be sent back to the visa post abroad for continued processing in line with the reasons for the appeal.

http://www.canadaimmigrationlawyers.ca/faq/what-is-the-difference-between-an-appeal-and-a-judicial-review/

 

[tuyen]

I must respectfully disagree with this representation. The hearing before the IAD is de novo and new evidence may be presented.

Due to the de novo nature of IAD hearings, hearings officers will often have different evidence to consider and present to the IAD than that considered by the original decision-maker. New evidence is often introduced
through documentation at the hearing.

Source: ENF 19 "Appeals before the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB)" - http://www.cic.gc.ca/english/resources/manuals/enf/enf19-eng.pdf

Yes, but the sentence immediately preceding that one says: "Exceptions may arise where the original decision is not defensible due to an error in law or fact or due to a breach of natural justice. Officers should consent to an appeal being allowed only when the circumstances of the case merit the original decision being overturned."

In this particular person's case, we're not dealing with an error in law or fact. And we're also not dealing with a breach of natural justice.

This person's case is about not having provided CONVINCING evidence that their relationship was genuine.

I can envision where new evidence would be accepted in cases where the rejection was based on things such as the results of a medical exam, or where required income has changed, but I definitely can't imagine them allowing you to provide "new" evidence proving your relationship was genuine for the simple reason that it would appear to be manufactured evidence. The obvious question would be posed by the appeal board: "if you HAD all this evidence to prove your relationship was genuine, why was it not included in your original application?"

However, if the new evidence is to dispute medical exam results or to offer proof of an updated income, then yes, those are far more likely to be admissible. For example, if your medical exam somehow ended up being bungled, and they diagnosed you as having TB, when you know for a fact that you don't have TB, then a follow-up medical exam can clarify the situation, and obviously your new evidence would have to be considered - especially if your rejection was based on the medical report saying you have TB.

Similarly, if you submitted an application saying you were earning $40,000 per year, and your sponsorship requirement was $45,000, you may have been denied for that reason, but if your income has changed for the better after the application was rejected, it may very well give you a valid reason to introduce new evidence.

But in terms of, "hey...we can give you more pictures of us hanging out in front of the Taj Mahal", I really doubt that's gonna fly with the appeal board.

 

[computergeek]

Well, at this point we disagree on this point. I suspect you describe the way you think the system should work. I'm striving to describe how I understand the system works based upon reading the processing manuals and precedent cases. We can have a discussion about whether or not the de novo approach used by IAD is appropriate or not, but there isn't any question in my mind that the appeal is not limited to evidence before the original CIC officer.

Here are a few spousal sponsorship cases that both indicate new evidence was presented and were found in favour of the appellant:

http://canlii.ca/t/fpl6t
http://canlii.ca/t/2bf89
http://canlii.ca/t/flj6v
http://canlii.ca/t/1tm3j
http://canlii.ca/t/1tm3s
http://canlii.ca/t/29z67

Here is an SCC decision that states:

... a hearing before the IAD is in fact a hearing de novo and the IAD may consider new evidence...

http://canlii.ca/t/1l249

If you don't find this persuasive, I'm not sure what else I can point to that would convince you otherwise.

 

[tuyen]

Well, at this point we disagree on this point. I suspect you describe the way you think the system should work. I'm striving to describe how I understand the system works based upon reading the processing manuals and precedent cases. We can have a discussion about whether or not the de novo approach used by IAD is appropriate or not, but there isn't any question in my mind that the appeal is not limited to evidence before the original CIC officer.

Here are a few spousal sponsorship cases that both indicate new evidence was presented and were found in favour of the appellant:

http://canlii.ca/t/fpl6t
http://canlii.ca/t/2bf89
http://canlii.ca/t/flj6v
http://canlii.ca/t/1tm3j
http://canlii.ca/t/1tm3s
http://canlii.ca/t/29z67

The one thing that all those cases have in common is the following statement in each of the decisions:

"The appellant and applicant testified at the hearing and additional documents were submitted at the hearing."

Unfortunately, we don't know what was said during testimony, nor do we have any idea what the "additional documents" consisted of.

The other thing we don't know is why those appeals were won. Was it because of the testimony given? Was it because of the new evidence submitted? Or was it because most appeals will succeed anyway because you have a bleeding heart liberal panel who will grant you an appeal for pretty much anything short of being a convicted child molester?

As I said - I'm perfectly willing to accept that there ARE cases in which additional documentation could prove to be persuasive, but it would have to be definitive and convincing. And if that proof did in fact exist, then it should've been submitted with the application in the first place.

I tried to find some statistics to see what percentage of appeals under Section 4(1) are ultimately successful, but those numbers are either not published, or very difficult to find. As such, I would suggest that if anyone is filing an application and is IN POSSESSION of required evidence, they'd be stupid not to submit it. There's no reason why an application should have to end up in an appeals court as a result of sloppiness.

 

[Popo012]

Computergeek

My name is well done writing,and everything else.Its only my code postal,the rest letters n numbers re well done but instead of putting j8 from the beggin,they putted it G8.My adress n my name are well done writin.I hope they will see the mistake.

 

[disfrust]

Hi all

Can anyone tell me wht does “forward file to MP for eligibility review” mean??

thanks

 

[Kathy1179]

Hi Leon. Our application has been approved last May 8th and i was advised that the documents been forwarded to CIC-Manila. My spouse had a previous marriage.When we filed our application, we submitted a copy of the court finality of the annulment.Please note also that we got married in Ontario and submitted a copy of the marriage certificate. My questions are: will they really require that cenomar or advisory on marriage?, will the ontario certificate suffice?...

Hi would like to ask what happened to your application? My spouse also is annullled what are the documents that you have submitted,please advise and thanks for your help.

 

[Sagar5187]

Yes, but the sentence immediately preceding that one says: "Exceptions may arise where the original decision is not defensible due to an error in law or fact or due to a breach of natural justice. Officers should consent to an appeal being allowed only when the circumstances of the case merit the original decision being overturned."

In this particular person's case, we're not dealing with an error in law or fact. And we're also not dealing with a breach of natural justice.

This person's case is about not having provided CONVINCING evidence that their relationship was genuine.

I can envision where new evidence would be accepted in cases where the rejection was based on things such as the results of a medical exam, or where required income has changed, but I definitely can't imagine them allowing you to provide "new" evidence proving your relationship was genuine for the simple reason that it would appear to be manufactured evidence. The obvious question would be posed by the appeal board: "if you HAD all this evidence to prove your relationship was genuine, why was it not included in your original application?"

However, if the new evidence is to dispute medical exam results or to offer proof of an updated income, then yes, those are far more likely to be admissible. For example, if your medical exam somehow ended up being bungled, and they diagnosed you as having TB, when you know for a fact that you don't have TB, then a follow-up medical exam can clarify the situation, and obviously your new evidence would have to be considered - especially if your rejection was based on the medical report saying you have TB.

Similarly, if you submitted an application saying you were earning $40,000 per year, and your sponsorship requirement was $45,000, you may have been denied for that reason, but if your income has changed for the better after the application was rejected, it may very well give you a valid reason to introduce new evidence.

But in terms of, "hey...we can give you more pictures of us hanging out in front of the Taj Mahal", I really doubt that's gonna fly with the appeal board.

HI,
in my case the interviewer raised following concerns:
- my wife came only for 2 weeks to india. and we only have short marriage ceromony and registration marriage. She didnt came again as she didnt had leaves.
- my mom dad and sister are in USA. They were also not present.
-my grand parents, her mom and her graands parents were closet of all relation ther werw present.
-We had small function so definately our album was short and not hi-fi one.

So what we are planning is since our first marriage anniversary is coming in Jan, we are planning a whole family re-uninon and attach snaps and places we hang out and all. to show as supporting documents as out proof.
Just to remind tht in refusal letter they havnt mention any reason ..

so whts your opinion on this....

 

[roysingh]

Hi Computer Geek, I received the email below when I inquired on the status of my notes. I went ahead and completed the form 5563 and emailed it back to the ATIP-ATIRP asking for notes from my case. Do you know why they have a separate file # at ATIP-ATIRP case but it's different from my Client id # ? How long do the notes take if requested by email ?


File number:A-XXXX-XXXX


Dear Mr., Ms.,

We have reviewed your access to information or privacy request and found that it is
incomplete. You must complete and/or submit the following document(s):

IMM 5563(Request) - Incomplete or missing:
Indicate which records are requested
Signature and/or date
Indicate under which Act the request is being made.

For further information on Citizenship and Immigration Canada's programs, visit us at
www.cic.gc.c

 

[computergeek]

Hi Computer Geek, I received the email below when I inquired on the status of my notes. I went ahead and completed the form 5563 and emailed it back to the ATIP-ATIRP asking for notes from my case. Do you know why they have a separate file # at ATIP-ATIRP case but it's different from my Client id # ? How long do the notes take if requested by email ?

Each ATIP request is assigned a unique case number. That's how they track the specific ATIP request.

In my experience, it normally takes 30 days to get your notes.


We have reviewed your access to information or privacy request and found that it is
incomplete. You must complete and/or submit the following document(s):

IMM 5563(Request) - Incomplete or missing:
Indicate which records are requested
Signature and/or date
Indicate under which Act the request is being made.

It sounds like you didn't fill out the form correctly. You want electronic notes. You must sign the form (which means you have to scan it to send it to them via e-mail). And you have to indicate if this is a request for yourself AND you are inside Canada (privacy act) or this is a request for someone else AND you are inside Canada (access to information).

 

[roysingh]

Thank you for the information Computer Geek. I noticed that form 5563 asks you if you want it electronically or a physical file. Do you still need to put the information in the body of the email ? Also, at the top of the form it asks you if this is via the privacy act or access to information.


It sounds like you didn't fill out the form correctly. You want electronic notes. You must sign the form (which means you have to scan it to send it to them via e-mail). And you have to indicate if this is a request for yourself AND you are inside Canada (privacy act) or this is a request for someone else AND you are inside Canada (access to information).

 

[computergeek]

In this particular person's case, we're not dealing with an error in law or fact. And we're also not dealing with a breach of natural justice.

This person's case is about not having provided CONVINCING evidence that their relationship was genuine.

I went back and re-read the OPs comments. All they said was that an officer at CIC decided their relationship was not genuine, but they insisted it was genuine. I have absolutely no idea how you get from that very high level description to "we're not dealing with an error in law or fact" - we don't even know what evidence was presented. "we're also not dealing with a breach of natural justice" - perhaps you are privy to more information than I am, because I don't feel qualified to make such a decision without having reviewed the original decision.

I've been in this position - I had an officer make a decision that was contrary to law and at least one judge agreed there were sufficient grounds to review my case that they granted me leave (and that is FAR narrower than what can be argued before IAD). There was no explanation as to the grounds for her rejecting a 30+ page submission. As for that prohibition about introducing new material? CIC submitted quite a bit of new material.

So while you may think that the officer is infallible, my own experience runs counter. I'm not saying the officer was right or wrong in this particular case - I'm just saying I don't have enough information to know one way or the other.

And one thing I do know - new evidence is allowed at an IAD hearing. It could be evidence that was not originally submitted to the officer, or it could be evidence that antedates any materials submitted to the officer. You may think that's inappropriate, but that's not going to change the fact that in a de novo hearing new arguments may be advanced and new evidence introduced. That was the only point I was attempting to address initially.

 

[computergeek]

Thank you for the information Computer Geek. I noticed that form 5563 asks you if you want it electronically or a physical file. Do you still need to put the information in the body of the email ? Also, at the top of the form it asks you if this is via the privacy act or access to information.

No. You just need to check off the boxes of the form.

 

[tuyen]

HI,
in my case the interviewer raised following concerns:
- my wife came only for 2 weeks to india. and we only have short marriage ceromony and registration marriage. She didnt came again as she didnt had leaves.
- my mom dad and sister are in USA. They were also not present.
-my grand parents, her mom and her graands parents were closet of all relation ther werw present.
-We had small function so definately our album was short and not hi-fi one.

So what we are planning is since our first marriage anniversary is coming in Jan, we are planning a whole family re-uninon and attach snaps and places we hang out and all. to show as supporting documents as out proof.
Just to remind tht in refusal letter they havnt mention any reason ..

so whts your opinion on this....

If your relationship is real, I'm sure you won't have any problems with the appeal. Just explain everything you can in as much detail as possible about why everybody wasn't able to be present at the wedding, and bring as much proof as you can to show that you've been in constant contact every day AFTER the wedding.