To appeal or to re-file, that’s the question…

Appeal or Re-fileIf your overseas spousal application is refused, you as a sponsor have a right to appeal such refusal to Immigration Appeal Division, as long as your spouse is considered an eligible member of family class.  Just a note that if you file an In-Canada spousal application, then you do not have a right to appeal to the Immigration Appeal Division.

If you decide to appeal, you have to consider whether your case has a good chance of success, especially in the early stage of your appeal.  Currently, Immigration Appeal takes about 2.5 years to process in Toronto.  If your case has a strong ground for appeal, then the early resolution officer will be interested in resolving your case by having a paper-based hearing with consent by Minister’s counsel and/or Alternative Dispute Resolution.

Once your case is decided in court-setting, then you cannot re-file your application due to the legal concept of res judicata (in essence, you cannot make a decision on the same issue, by same subjects for same objective more than once).  Before you decide to proceed to a full hearing, you should consider withdrawing your appeal and re-filing your application, especially if your application was prepared without full legal counsel in the first place.

To protect your right to appeal, you must file your appeal within 30 days from the date of refusal.  However, before going to the full Immigration Appeal hearing, I recommend you to take your case for legal counsel to see if you have a good ground for appeal and if re-filing is an option for your case.

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