INFORMATION GUIDE

SPONSORSHIP APPEALS
INADEQUATE SUPPORT 19(1)(b)

The questions and answers below are to help you prepare for your appeal hearing. The following information is limited and general only. It is not complete legal advice. Please note that the new Immigration and Refugee Protection Act has been passed and is expected to be in force later in 2002, so the information in this guide may not apply to later cases.

1.  INTRODUCTION

Where will my appeal hearing take place?

Your appeal hearing will take place at the Immigration and Refugee Board. The Immigration and Refugee Board is an independent tribunal. It is not part of Citizenship and Immigration Canada ( CIC).

Who will decide my appeal?

A Member of the Immigration Appeal Division ( IAD) of the Immigration and Refugee Board will decide your appeal.

Who will be at my appeal hearing?

In addition to you and the IAD Member who will decide your appeal, your counsel, if you chose to be represented, will be present. There will also be counsel for the Minister of Immigration ( CIC) who may provide evidence, question you and other witnesses, and make arguments against your appeal. Any witnesses that you or the Minister's counsel bring to testify (give oral evidence) will also be at the hearing. An interpreter will be there for you or any of your witnesses if you have asked for one. Members of the public are also allowed to attend.

Do I need someone to represent me in my appeal?

You do not have to have someone represent you, but you may if you think that this will help your appeal. There are often questions of law that need to be argued in the appeal and you have to make sure that your case is supported by enough evidence. You should also know that Minister's counsel will be at your hearing to question you and other witnesses, and make arguments against your appeal. If you have someone represent you, this can be a lawyer (a person with legal training and a licence to practise law) or a consultant, friend, or relative. That person must be available and prepared on the date of the appeal hearing.

How will I know when my appeal hearing will take place?

You will receive a letter from the IAD to appear at an assignment court on a specific date and time. You should be there on the date and at the time stated in the letter. At the assignment court, an IAD Member will ask you and the Minister's counsel questions to make sure that your case is ready to be scheduled. If the Member is satisfied that your appeal is ready to be scheduled, you will be told the day your appeal hearing will take place and you will be given a written notice of that date.

What will happen if my counsel and I cannot appear on the appeal hearing date?

When an appeal hearing date is set, you should be ready for the hearing on that date. If you believe that you will not be ready, you may ask for a postponement (that the hearing be delayed to a later date) by sending a letter explaining your situation to the registry office of the Immigration Appeal Division, and a copy to the Minister's counsel, Citizenship and Immigration Canada, Hearings and Appeals. The addresses of the IAD regional office and the CIC regional office are in the material that the IAD sends to you after you have filed your appeal. In your letter you must explain why you want your appeal hearing to be postponed. Your hearing will only be postponed for a very good reason. If the IAD does not reply, or if the IAD refuses your request, you must appear on the hearing date prepared for your appeal hearing. If you do not appear, your appeal may be dismissed.

You may ask for a postponement at your hearing, but it will not be allowed unless you can show there is a very good reason for your hearing not going ahead that day.

2.  PREPARING FOR YOUR APPEAL

What must I show to win my appeal?

It is your responsibility to show that the refusal is not legal or that there are compassionate or humanitarian reasons for allowing the appeal for your relative to come Canada.

Legal

To show that the refusal is not legal you must show that your relative is able and willing to support himself or herself, or that there are adequate arrangements for the care and support of your relative. These arrangements cannot include social assistance (such as welfare). In other words, you have to show that if your relative comes to Canada, she or he will not rely on social assistance. To decide this, the IAD Member may consider evidence about:

• The income and financial situation of you and other family members that wish to assist your relative;
• Your relative's age, education, training, job history, and knowledge of English or French;
• The arrangements that have been made in Canada for the care and support of your relative; and
• Any other information that may help the IAD Member decide this issue.

Compassionate or Humanitarian

Even if your relative is not able and willing to support himself or herself, or there are not adequate arrangements for the care and support of your relative, you may still win your appeal by showing that there are compassionate or humanitarian reasons for allowing your relative to come to Canada. The IAD Member may consider evidence about:

• The reason why there are not adequate arrangements in Canada for the care and support of your relative in Canada;
• Whether you, your relative or other family members have tried or will try to support your relative in Canada;
• The kind of relationship you have with your relative;
• Whether you have other relatives in Canada and, if so, the kind of relationship you have with them;
• Whether you can visit your relative in his or her country;
• The kind of support your relative can provide to you;
• The circumstances of your relative in his or her country;
• If there are reasons why you may not deserve special consideration; and
• Any other information that may help the IAD Member decide your appeal.

You should come prepared to deal with all of the reasons the visa officer or immigration officer gave for refusing the sponsorship or application.

Do I need to provide any documents?

Documentary evidence can be very important in helping you to win your appeal. To show that the refusal is not legal you may want to provide documents that show that your relative is able and willing to support himself or herself or that there are adequate arrangements for the care and support of your relative. This may include documents that show the relative's education, job skills, and previous work experience. It may also include evidence about your financial situation and that of others family members who wish to assist your relative such as T-4 slips, tax assessments, pay stubs, letters from employers and other family members etc.

For compassionate and humanitarian consideration, you may also want to provide documents to show the relationship you have with your relative and the importance of the sponsorship such as letters, phone bills, receipts for money transfers and/or plane tickets. Some people also provide letters from family, friends, and/or employers.

If you would like to provide documents, you must make two copies of each document (including any photographs or videocassettes). You must send one copy to the registry office of the Immigration Appeal Division, and send one copy to the Minister's counsel, Citizenship and Immigration Canada, Hearings and Appeals. The addresses of the IAD regional office and the CIC regional office are in the material that the IAD sends to you after you have filed your appeal. The documents must be received at least 20 days before the hearing. If you do not do this (called "disclosure"), the IAD Member may decide not to permit your documents to be used in your appeal hearing.

If your documents are not in English or French, they must be translated, and the translations must be sent along with the copies of the documents to the IAD and to the Minister's counsel. The person who translated the documents should be a certified translator and attach a statement certifying that the translation is accurate.

Even if you have provided copies of your documents before the hearing, you should bring the original documents to the hearing if you have them.

Do I have to bring witnesses?

You do not have to bring witnesses, but you may if you think this will help show that the refusal is not legal or that there are compassionate or humanitarian reasons for allowing the appeal for your relative to come Canada. If you would like to bring witnesses, they must be prepared to answer questions at your hearing. You must let the IAD and the Minister's counsel know at least 20 days before the hearing who you will be bringing as a witness and why that witness will be testifying at your appeal hearing (by completing the form that will be given to you for this purpose).

What do I do if I need an interpreter?

If you or any of your witnesses need an interpreter, you must let the IAD know at the assignment court or at least 15 days before your appeal hearing.

3.  YOUR APPEAL HEARING

What will happen at my appeal hearing?

1. You will testify.

   If you have counsel, your counsel will begin by asking you questions so that you can give evidence to show that the refusal is not legal or that there are compassionate or humanitarian reasons for allowing the appeal for your relative to come Canada. If you do not have counsel, you may tell the IAD Member what you think is important or you may ask the Member to ask you questions that the Member thinks are needed to decide your appeal. The Minister's counsel will also question you on the evidence you have given at the hearing because the Minister's counsel is there to argue against the appeal.

2. Witnesses will testify.

   After your testimony, your witness or witnesses will testify. Any witness you bring to the hearing will usually be asked to stay in the waiting room and not join the hearing until after you have testified. The witness then will be called to answer questions. Your counsel may question the witness or, if you do not have counsel, you may question the witness or ask the IAD Member to do it. The Minister's counsel will also be able to question the witness. The Minister's counsel can also bring witnesses to testify. You have the right to question any witnesses brought by the Minister's counsel.

3. Arguments will be made.

   After you and the witnesses have testified, the IAD Member will ask you to explain why you think the evidence shows that the refusal is not legal or that there are compassionate or humanitarian reasons for allowing the appeal for your relative to come Canada. The Minister's counsel will also be asked whether he or she thinks you have proven your case. You will then be asked to respond to the submission of the Minister's counsel.

When will I know the decision in my appeal?

The IAD Member may be able to decide your appeal and give reasons for the decision at the end of the hearing. If not, the Member will tell you that the decision and reasons will be sent to you by mail at a later date, usually within 90 days of the hearing.

MORE INFORMATION

If you would like more information, you may visit the IRB's Documentation Centre at our offices. There you will find the following information:

1. IMMIGRATION AND REFUGEE BOARD OF CANADA: AN OVERVIEW

   This document provides basic information on the types of appeals heard at the IAD and the appeal process.

2. SPONSORSHIP APPEALS

   This paper describes how different types of sponsorship appeals are decided.

3. REMOVAL ORDER APPEALS

   This paper describes how different types of removal order appeals are decided.

4. PRACTICE NOTICE: Scheduling of Appeal Hearings in the Immigration Appeal Division ( IAD) of the Immigration and Refugee Board

   This notice sets out the policy and procedure of the IAD concerning how appeals are scheduled to be heard.

5. PRACTICE NOTICE: Postponements and Adjournments in the Immigration Appeal Division ( IAD) of the Immigration and Refugee Board

   This notices sets out the policy and procedures for postponements and adjournments requests of appeal hearings.

6. REFLEX

   This is a publication of summaries of selected recent immigration and refugee law decisions since May 1991.

7. IMMIGRATION ACT and IMMIGRATION APPEAL DIVISION RULES