Operational Bulletin 396 - March 7, 2012

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

Instructions to visa officers on making determinations on membership in the Family Class

Summary

This Operational Bulletin (OB) provides instructions to visa officers when assessing applications submitted for permanent residence as members of the family class (FC). In all FC cases, officers should make a decision as to whether the applicant is a member of the FC.

Background

Citizenship and Immigration Canada has the authority to determine if an applicant is a member of the FC. Section 117(1)(a) of the Immigration and Refugee Protection Regulations (IRPR) defines that a foreign national who is the sponsor’s spouse, common-law partner or conjugal partner is a member of the family class. In order for visa officers to issue a visa, the applicant must meet the definition. When visa officers determine that an applicant is not a member of the FC, the sponsor, as per section 63 of the Immigration and Refugee Protection Act (IRPA), has the right to appeal to the Immigration Appeal Division (IAD).

When a visa officer refuses a FC application on the basis that the applicant is not a member of the FC, the IAD is limited to considering on a de novo basis whether the officer’s determination is correct. If the IAD finds that the officer’s decision is correct and the applicant is not a member of the FC the IAD has no further jurisdiction.

As per section 65 of IRPA, the IAD can only consider Humanitarian and Compassionate (H&C) considerations, if it has been determined that the applicant is a member of the FC:

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…

Instructions

Based on all the information provided by the sponsor and the applicant, including information gathered at interviews, visa officers in all FC cases should make a decision as to whether the applicant is a member of the FC and the decision should be clearly recorded in the case notes; failure to do so may result in the IAD allowing the appeal on H&C considerations.

Visa officers are required to follow these instructions for all FC overseas applications:

Step Action
1 Assess the application to determine whether the applicant is a member of the FC.
2 If the applicant is deemed a member of the FC and meets admissibility requirements, visa officers should process the application as per instructions in the overseas processing manual (OP 2).
3 If the applicant is deemed a member of the FC and has been found inadmissible, visa officers should send a refusal letter to the applicant and the sponsor outlining the reasons for inadmissiblity, as per instructions in section 19 of OP 2 (Notifying sponsors of appeals rights).
4 If the applicant is not deemed a member of the FC, visa officers should explain in the refusal letter the findings of the FC assessment, as well as any reasons which exist for inadmissibility.

For further information, please refer to OP 2 (Processing members of the Family Class), and section 8 of OP 21 (Family Class sponsorship appeals).

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