Under the Immigration and Refugee Protection Regulations (IRPR) a foreign national is a member of the family class if the foreign national is the sponsor’s spouse, common-law partner or conjugal partner.
If at the time of the marriage ceremony either one or both of the spouses is not physically present then IRCC does not recognize the marriage and it is called marriage by proxy. IRPR precludes the foreign national from being considered a member of the Sponsor’s family class if, at the time the marriage ceremony was conducted, either one or both of the spouses is not physically present.
Appeal: Under 63 (1) A sponsor may appeal to the Immigration Appeal Division ( IAD ) against a decision of the officer which is not to issue the foreign national a permanent resident visa. However, in an appeal, 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.
Since the foreign national is precluded to be a member of the Sponsor’s family class then the IAD has no jurisdiction to provide relief on humanitarian and compassionate grounds, because the Applicant is not a member of the Appellant’s family class.
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