When can an appeal be allowed on humanitarian and compassionate grounds?

[canadianwoman]

Could someone explain this?
I thought that when someone appeals a refused spousal application, the appeal could be allowed on humanitarian and compassionate grounds. But that first the appeal judge would have to find that the marriage is genuine. But once they decide the marriage is genuine, they can allow the appeal for humanitarian and compassionate reasons.

But on the Immigration and Refugee Board website here:
http://www.irb-cisr.gc.ca/eng/brdcom/references/procedures/proc/iadsai/info/Pages/marriage.aspx
There is this quote that says the judge cannot consider humanitarian and compassionate considerations in sponsorship appeals of marriage cases:

"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."

I was surprised, so I checked CanLII, and there are many cases where the sponsor appeals the refusal of the PR visa to his/her sponsored spouse, and where the IAD judge does consider humanitarian and compassionate reasons, and allows the appeal because of them.
Here is one such case:
http://www.canlii.org/eliisa/highlight.do?text=humanitarian%2Band%2Bcompassionate+marriage+immigration&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/irb/doc/2009/2009canlii56271/2009canlii56271.html
And this quote from it:
"Section 65 of IRPA states that in an appeal under subsection 63(1), respecting an application based on membership in the family class, the Immigration Appeal Division (IAD), may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class."

So is the first quote from the IAD wrong? Or just incomplete? It seems to be misleading potential appellants.

 

[PMM]

Hi

Could someone explain this?
I thought that when someone appeals a refused spousal application, the appeal could be allowed on humanitarian and compassionate grounds. But that first the appeal judge would have to find that the marriage is genuine. But once they decide the marriage is genuine, they can allow the appeal for humanitarian and compassionate reasons.

But on the Immigration and Refugee Board website here:
http://www.irb-cisr.gc.ca/eng/brdcom/references/procedures/proc/iadsai/info/Pages/marriage.aspx
There is this quote that says the judge cannot consider humanitarian and compassionate considerations in sponsorship appeals of marriage cases:

"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."

I was surprised, so I checked CanLII, and there are many cases where the sponsor appeals the refusal of the PR visa to his/her sponsored spouse, and where the IAD judge does consider humanitarian and compassionate reasons, and allows the appeal because of them.
Here is one such case:
http://www.canlii.org/eliisa/highlight.do?text=humanitarian%2Band%2Bcompassionate+marriage+immigration&language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/irb/doc/2009/2009canlii56271/2009canlii56271.html
And this quote from it:
"Section 65 of IRPA states that in an appeal under subsection 63(1), respecting an application based on membership in the family class, the Immigration Appeal Division (IAD), may not consider humanitarian and compassionate considerations unless it has decided that the foreign national is a member of the family class."

So is the first quote from the IAD wrong? Or just incomplete? It seems to be misleading potential appellants.

Go back re-read the appeal you are quoting. The application was refused for criminality not that the marriage was a MOC. Also read the Act.

Right to appeal — visa refusal of family class

63. (1) A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.

If the applicant is not a member of the family class, for example they were not examined when the sponsor emigrated, then they are no longer a member of the family class. So as they are not a member of the family class, then there is no appeal. Go back to CanLii and search on "not a member of the family class"

 

[CharlieD10]

H&C, from what I understand, can only be considered if the foreign national is deemed to be a member of the family class. So, a judge would consider H&C grounds if the person was inadmissible for some other reason, such as A39 (financially inadmissible). In a case like that, the marriage has been deemed genuine and so the foreign national is a member of the family class BUT it is obvious they cannot become self-supporting and their sponsor is not financially secure to fulfill the sponsor's responsibilities. The judge then considers if there are enough H&C reasons to overcome the grounds for inadmissibility.

H&C grounds are not applicable to sponsorship appeals under Section 4 because CIC is of the opinion that the marriage is not genuine and was entered into in order for the foreign national to gain some status under IRPA. As such, for the purposes of IRPA, that foreign national is NOT a member of the family class, and the judge cannot consider H&C grounds for overcoming being inadmissible under Section 4, because there are none. That's also how it works for Section 117(9)(d), because undeclared family members are not members of the family class, and the judge cannot consider H&C grounds in those cases either.

I'm not a lawyer, but that's how it reads to me.

 

[canadianwoman]

Thanks, you two. That is what I thought as well, but the first quote from the IAD surprised me.
In the case I'm worried about, the applicant was refused because of criminality, but the visa officer found their marriage to be genuine. So the sponsor should concentrate on preparing to show humanitarian and compassionate grounds for allowing the appeal, and just concede the criminality? (The crime was not very bad - in fact it is very similar to the case I cited in my first post, where the appeal was allowed.)

 

[CharlieD10]

If the visa officer has conceded the genuineness of the marriage, then H&C has to be the way to go.

 

[inlimbo]

Thank you so much for taking the time to post this and show some care and concern. I appreciate the gesture very much.

 

[canadianwoman]

No problem. How are the preparations for the appeal going?

 

[inlimbo]

Not a lot has happened so far. I've been writing my thoughts and of my experiences and from that, my lawyer will create the questions he will ask of me at the hearing. I think we will be meeting next week or the week after. The case example you posted has created some expectation for me, so I'm hoping this is how things go for us.

 

[canadianwoman]

I hope you win. I think you will based on the similarities with the case I posted.

 

[inlimbo]

I think I will too. There are several strengths to our case, compared to the one you posted as well. I think we will be ok. We need to be. It's so scary, though.

 

[OhCanadiana]

I think I will too. There are several strengths to our case, compared to the one you posted as well. I think we will be ok. We need to be. It's so scary, though.

Good luck. Silly question, but have you shared the case canadianwoman posted with you lawyer? S/he may have seen it and others already but Bette safe than sorry

 

[nazam80]

Good luck. Silly question, but have you shared the case canadianwoman posted with you lawyer? S/he may have seen it and others already but Bette safe than sorry

Good Luck hope everything goes well. How long it takes for appeal i mean waiting time? During this time have you had AIP i am some sort of workpermit?

Naz

 

[Rontan]

Hello all, I find that there is an issue here?
Only during Appeal that you will know if the judge finds that the marriage is genuine, yes?

And how can you now appeal on H&C after the appeal is over?

And I have a separate question from the above.
Can anyone give me an aides about the appeal judge? Is this judge supposed fair ?
Unlike the minister ‘s counsel or VO?
That their mandate is to find fraud and has no accountability even when they blantly lie in the gcms notes!

And the Minister ‘s counsel deliberately misled Judge to favor her rejection!
Even when she conceded that there is a genuine relationship!
I only hope that all this is recorded during the appeal!
As it is proof that R4.1(a) marriage not genuine, is applied in error.
Thank you for reading.