Sponsorship Appeals - Immigration and Refugee Board of Canada

adopted before having attained 19 years of age and was not adopted for
the purpose of gaining admission to Canada of the person or dependant,
or gaining the admission to Canada of any of the person’s or dependant’s
relatives.
Type of Refusal: jurisdictional or non-jurisdictional
Under the former Regulations, the onus was on the appellant to establish that the
sponsored spouse was not excluded from membership in the family class by reason of the
application of section 4(3) 6 or that an adopted child was not excluded from the definition of
“adopted”. In either case, if membership in the family class was not established, the appeal
would be dismissed for lack of jurisdiction. Under the former Regulations, the Immigration
Appeal Division had no jurisdiction to hear an appeal with respect to a sponsorship where the
applicant was not a member of the family class in relation to the sponsor.
Under IRPA, the same issue arises. If a foreign national is not considered a spouse, a
common-law partner, a conjugal partner or an adopted child of the sponsor due to the application
of section 4 of the IRP Regulations, then the foreign national is not a member of the family class
with respect to his or her sponsor.
Section 63(1) of IRPA provides that a person who has filed in prescribed manner an
application to sponsor a foreign national as a member of family class may appeal to the
Immigration Appeal Division against a decision not to issue the foreign national a permanent
resident visa. Section 10(6) of the IRP Regulations provides that a sponsorship application not
made in accordance with section 10(1) is considered not to be an application filed in a prescribed
manner for the purposes of section 63(1) of IRPA in which case there would be no right of appeal
to the Immigration Appeal Division. Section 10(1) of IRP Regulations sets out the form and
content of an application. 7
Section 65 of IRPA provides that in an appeal under subsection 63(1) or (2) respecting an
application based on membership in the family class, the Immigration Appeal Division may not
consider humanitarian and compassionate considerations unless it has decided that the foreign
national is a member of the family class and that their sponsor is a sponsor within the meaning of
the regulations. At issue is whether the appeal to the Immigration Appeal Division is
jurisdictional or non-jurisdictional.
Based on the wording of sections 63(1) and 65 of IRPA and subject to sections 10(1) and
10(6) of the IRP Regulations, Immigration Appeal Division panels have treated family class
sponsorship appeals as non-jurisdictional. 8 While the Immigration Appeal Division may not be
6
7
8
M.C.I. v. Heera, Lilloutie (F.C.T.D., no. IMM-5316-93), Noël, October 27, 1994.
Where the sponsorship application is not filed in a prescribed manner per s. 10(6) of the IRP Regulations, any
refusal will be jurisdictional.
See for example Zeng, Qing Wei v. M.C.I. (IAD VA2-02640), Workun, April 22, 2003, where the appeal was
dismissed as the refusal was valid in law and not dismissed for lack of jurisdiction.
Sponsorship Appeals
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January 1, 2008 Bad Faith Family Relationships - Ch. 6