Visa officer erred in assessing family class application

By Sukhram Ramkissoon

Sukhram Ramkissoon

The Immigration Appeal Division (IAD) recently allowed a Family Class Sponsorship Appeal with respect to a sponsor’s parents and their accompanying dependents’ applications for permanent residency in Canada.

Firstly, let us look at Canada’s Immigration Laws dealing with Family Class Sponsorship applications:

A foreign national may be selected as a member of the family class on the basis of their relationship as to the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident.

Sponsorship of foreign nationals

A Canadian citizen or permanent resident, who meets the eligibility requirements may sponsor a foreign national, subject to the regulations.

A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is (amongst other definitions)

          –  the sponsor’s spouse, common-law partner or conjugal partner;

          –  a dependent child of the sponsor;

          – the sponsor’s mother or father;

          – the mother or father of the sponsor’s mother or father;

          – a person whose parents are deceased, who is under 18 years of age, who is

            not a spouse or common-law partner, and who is

(i)       a child of the sponsor’s mother or father,

(ii)      a child of a child of the sponsor’s mother or father, or

(iii)     a child of the sponsor’s child;


These are the relevant facts of the IAD case and in such matters, a sponsor is referred to as the “appellant”, which I will also do in this article. The appellant appealed the negative decision to the IAD in the visa office’s refusal to grant a permanent resident visa for her brother, a citizen of Afghanistan.

The appellant applied to sponsor his brother as a dependent member of the family class by way of a parent sponsorship. The family class is defined as above, on familial relationships and does not typically include a sibling but they may be included as an accompanying dependent to a parent’s application, or in other specific cases, such as an orphaned relative. An exception that may apply to siblings on their own is where the sponsor has no other relatives in Canada, but that was not alleged in this IAD case. Even though it was not alleged, the visa officer refused the appellant’s brother’s application based on the failure to meet that exception.

At the appeal hearing the Appellant argued that he did not apply to sponsor his brother as an independent applicant and that his membership in the family class should have been assessed under the parent sponsorship for her mother, with her brother as an accompanying dependent.

The Minister defended the visa officer’s refusal.  The issue before the IAD, was simply this: did the visa officer err by failing to adjudicate the brother’s application as an accompanying dependent to his parent’s application?

The IAD allowed the appeal and found it was wrong for the visa office to assess the appellant’s brother’s application as a family class member in his own right using the exception.  The brother’s membership in the family class needs to be adjudicated as an accompanying dependent to his parent’s application.

The IAD further stated that it found that the available evidence is clear on the central issue, which is that the Appellant submitted a sponsorship for his mother with his brother as an accompanying dependent, which is allowed in law. The documentary evidence revealed administrative confusion for reasons that were unclear and not likely to be discovered in the appeal, which also does not matter in this appeal. The IAD ruled that the administrative confusion generated an incorrect adjudication of the sponsorship, so the appeal must be allowed.

The IAD ordered that the officer’s decision to refuse a permanent resident visa be set aside and the file be returned for further processing because it was an error to adjudicate the brother’s application as an independent applicant rather than an accompanying dependent of his parent.


SUKHRAM RAMKISSOON is a member of CICC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.