17 Apr

ADR Conferences at the Immigration Appeal Division

Posted in: Our Blog

What is ADR in the context of a sponsorship appeal?

ADR, or Alternate Dispute Resolution is an informal process in which a Sponsor who is appealing the refusal of their partner’s application for permanent residence as a member of the family class to the Immigration Appeal Division [IAD] has an opportunity to sit down with a representative of the Minister of Immigration and attempt to persuade them they ought to consent to the appeal being allowed.

Alternatively, the Minister may attempt to persuade an Appellant that their appeal should be withdrawn due to some deficiency or defect which cannot be addressed at the IAD.

What do I need to do in order to prepare for my ADR Conference?

Because an ADR Conference is your opportunity to persuade Immigration that your appeal has merit, it is important for you to gather all the information that you would ordinarily rely upon at the actual hearing of your appeal. It is important that this evidence addresses the concerns raised by the visa office in its refusal of your application. These concerns are usually outlined in some detail in the officer’s notes (often known as GCMS notes) which are found within the Appeal Record. Examples of the evidence that is typically produced includes but is not limited to:

  • Evidence of contact between yourself and your partner;
  • Evidence of financial support;
  • Evidence of travel to visit your partner;
  • Letters of support from friends and family, and;
  • Any other material that is relevant and is necessary to address the officer’s concerns.

What happens at an ADR conference?

The ADR process itself is informal. The meeting is attended by a Dispute Resolution Officer [DRO] who is an employee of the IAD and whose function is to facilitate a discussion between the two parties. This may include identifying issues or clarifying the evidence that has been presented. The DRO is also required to explain the proceeding to the Appellant (the sponsor) who may not be familiar with the process.

Also present will be the counsel for the Minister. In this context, the Minister of Immigration is the decision maker. That is because the purpose of this proceeding is to persuade the counsel for the Minister that your appeal will succeed should it be heard by a Panel of the IAD. If the Minister is persuaded of this, they will consent to the appeal being allowed and a joint submission will be forwarded to a Board Member for issuance of an Order allowing the appeal. Because the Minister is the decision maker, the process involved often occurs in an inquisitorial style with counsel for the Minister leading the examination and raising concerns directly with the Appellant. This contrasts the proceeding at an appeal hearing which involves examination-in- chief by the Appellant’s counsel followed by cross examination by the Minister’s counsel and re-direct by the Appellant’s counsel.

After counsel for the Minster has asked their questions, they will likely adjourn to a caucus with the DRO in order to discuss the information that they received and what is an appropriate outcome to the ADR.

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What happens after the ADR Conference?

At the conclusion of an ADR proceeding, the counsel for the Minister may consent to the appeal being allowed. If this occurs, a joint request for an Order allowing the appeal will be submitted to the Tribunal and a Member will typically issue an Order allowing the appeal in Chambers. After this occurs, the file is transferred back to the visa post and the application for permanent residence is processed in accordance with the Tribunal’s Order.

In the event that the officer does not agree to consent to the appeal being allowed, the Appellant is left with two options:

  1. Proceed to a full hearing of the appeal before a panel of the Immigration Appeal Division. This is a quasi-judicial process which involves the hearing of evidence including the calling of witnesses and presentation of legal arguments.
  2. Withdraw the appeal and submit a new application to the same visa post that refused the first application. This may be an appropriate course of action if there is a deficiency on the underlying application for an immigrant visa that cannot be overcome in an appeal hearing. (For example, the marriage was not legally valid at the time the application was submitted, etc.)

Can a lawyer help me?

A good lawyer can help you at every step of this process. A lawyer will help you by discussing the reasons for the refusal of your application with you as well as the evidence that can be provided in order to address the concerns raised by the visa officer. A lawyer will also prepare you for the ADR Conference both by familiarizing you with the process as well as reviewing relevant details of your case with you so that you are fully prepared to answer questions when you are examined by the Minister. In addition, although a lawyer rarely plays a central role in the proceeding at an ADR, a lawyer can help you at the ADR Conference by discussing the relevant issues with counsel for the Minister as well as explaining information that may not be apparent from the face of the record.

A good lawyer will also attempt to persuade counsel for the Minister to make a decision favourable to you and advise you of the best course of action at the conclusion of the proceeding.

Joel Sandaluk is a Partner at Mamann, Sandaluk, and Kingwell LLP and the leader of the Immigration Litigation Group.

 

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