Appeals Inside Canada

Under the current immigration law, not everyone has the right to appeal an immigration decision. In addition, not every decision made by Canadian immigration authorities can be appealed.  Generally, only permanent residents of Canada have the right to appeal an immigration decision and only in certain situations, such as the refusal of sponsorship applications , issuance of removal orders against them, or if they have been found not to have met their residency obligations, while obviously only Refugee Claimants can appeal decisions made by the Refugee Protection Division (RPD).

Appeals generally go to the Immigration Division (ID) or the Immigration Appeal Division (IAD), or the Refugee Appeal Division (RAD) all of which are part of the Immigration and Refugee Board (IRB).  The ID holds admissibility hearings for people who are believed to have contravened the Immigration and Refugee Protection Act (IRPA) and are facing removal from Canada.  The IAD hears four types of immigration appeals: family class sponsorship, removal orders against permanent residents, permanent residents found not to be have met residency requirements, and appeals by the Canada Border Service Agency (CBSA) on decisions of admissibility made by the Immigration Division and the RAD hears the appeals of refused refugee claimants whose claims have been rejected by the RPD.

All decisions made by RPD, RAD, IAD and ID are based on the evidence provided and the law that applies to the case.  You have the right to be represented by legal counsel at the hearing at your own expense.  You also have the right to an interpreter and may call witnesses to support your case.

 

An appeal to the IAD & RAD are filed by completing an appeal form.  There are always time limits in the filing of appeals.

If you are not happy with the decision of the IAD or the RAD, you may seek permission and apply to the Federal Court for judicial review.

 

The Different Reasons for Appeal in the Immigration and Refugee Process

Residency Appeals

If a Permanent Resident (PR) applies to have their PR card renewed/extended and this application is refused on the basis they have not met the residency requirement, or for any other reason, the Permanent Resident may appeal this decision to the Immigration Appeal Division of the Immigration and Refugee Board within 60 days. The Appeal Division will hold a hearing to decide if the decision to take away the appellant's permanent residence should be allowed to stand, or if it should be overturned. The Appeal Division may consider both the legal basis for the appeal and the Humanitarian and Compassionate grounds related to the appeal. The appeal will be held in Canada and the appellant can provide new evidence in support of their case and can testify before a judge. Where the appellant is outside Canada such testimony may be done by teleconference. If the Immigration Appeal Division decides to grant the appeal then the appellant will be permitted to retain their permanent residence and can obtain a new PR card. If the Immigration Appeal Division denies the appeal a further appeal to the Federal Court may be made.

Travel documents to Canada can be obtained by those appealing the revocation of their permanent resident status where they have been in Canada at least once within the last year, or where the Immigration Appeal Division determines that their presence in Canada is necessary for their appeal.

 

Our Regulated Canadian Immigration Consultant are trained, licensed and accredited to assist you with your appeal process at IAD and represent you.

 

If your application has been denied/refused, you can contact us for a review of your refusal and file an appeal in Immigration Appeal Division of IRB.

Asylum & Refugee Appeal

Foreign Nationals in Canada whose claim for protection has been refused by Refugee Protection Division (RPD) of IRB can appeal the decision in Refugee Appeal Division(RAD) of IRB.

You still have one more opportunity to have your case heard at the Refugee Appeal Division

In the event that you have made a refugee claim that was refused/rejected/denied by the Refugee Protection Division(RPD) of the Immigration and Refugee Board (IRB), you still have one more opportunity to have your case heard at the Refugee Appeal Division (RAD). 

Appeals are normally filed when there is an error of law or fact or both in the decision rendered by the Member of Refugee Division.

The RAD is a useful avenue for redress of your claim for two reasons, since the RAD: 

  • gives most claimants the opportunity to try and prove that the Refugee Protection Division (RPD) decision was wrong in fact and/or law; and

  • allows new evidence to be introduced to the record that was not reasonably available at the time the RPD made its decision.

 

Appeals before the RAD are rarely conducted orally, and are most often reviewed in writing. In order to make sure that this route is open to you, it is important to act quickly as soon as you receive the refusal of your refugee claim from the IRB since the RAD is subject to extremely strict deadlines and time limits. If you miss a deadline, you may miss out on your opportunity to appeal the refusal of your claim. 

 

To launch an appeal, you must file a notice of appeal to the RAD no later than 15 days* after the day on which you received the written reasons for the RPD decision.

  • The following time limits apply to your appeal:

  • no more than 15 days after the day on which you received the written reasons for the RPD decision, you must file your notice of appeal.

  • no more than 30 days after the day on which you received the written reasons for the RPD decision, you must file your appellant's record.

  • Unless a hearing is ordered, the RAD will wait 15 days before making a decision on your appeal.

  • The Minister may decide to intervene and submit documentary evidence at any time before the RAD makes a final decision on the appeal.

  • If the Minister decides to intervene and to provide submissions or evidence to you, the RAD will wait 15 days for you to reply to the Minister and the RAD.

  • Once you have replied to the Minister and the RAD, or if 15 days have passed and you have not replied, the RAD will make a decision on your appeal.

 

If you miss the time limit to file the notice of appeal or the appellant's record and you still want to continue with the appeal, you must file an application for an extension of time. The application for an extension of time must follow rule 6 (Application for extension of time to file or perfect) and rule 37 (How to make an application) of the RAD Rules. You must provide three copies of your notice of appeal and two copies of your appellant's record with your application. You must also provide an affidavit or solemn declaration that explains why you missed the time limits.

 

Once an appeal is submitted to the RAD, the member reviewing your claim will determine whether there is merit to the appeal. If your appeal is successful, the RAD may proceed in one of two ways, by either: 

  • Returning your application back to the RPD for redetermination according to new instructions; or

  • Substituting its own decision for the RPD’s, and granting your claim for refugee protection.

 

Our Regulated Canadian Immigration Consultant are trained, licensed and accredited to assist you with your appeal process at RAD and represent you.

 

If your claim has been refused, you can contact us for a review of your refusal and file an appeal in Refugee Appeal Division of IRB.

 

Sponsorship Appeals

When a person sponsors his or her spouse for Canadian permanent residence, the application is sometimes refused by IRCC. This can come as a disappointment and shock to the couple, who often believe that marriage alone entitles the spouse the benefit to come to Canada. In fact, this is not the case, and a lot of spousal sponsorship applications are refused.

Common reasons for refusal include: the sponsored spouse has a criminal record; the sponsor is in receipt of social assistance, is bankrupt or is in default of a previous sponsorship agreement; or IRCC believes that the marriage may be one of convenience or not genuine. There are a number of reasons as to why IRCC may doubt the genuineness of a marriage or simply believe that a marriage was entered into for immigration purposes. An example of a marriage that may be examined would be for cultural differences between the spouses, or inconsistencies in the history of the relationship between the couple, big age, educational or wealth gap.

 

What are the sponsor's options when this occurs? Sponsors need to be aware that they have a right to appeal this decision to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB). Such an appeal is started by filing a notice of appeal with the local IAD office, and attaching a copy of the decision.

 

The Sponsorship application rejection/refusal/denial appeal must be filed  by the sponsor within 30 days of receiving the refusal letter, or else the IAD may refuse to hear the appeal.

 

The IAD is an independent and impartial tribunal that will hear and decide the appeal. The government department responsible for immigration enforcement, Canada Border Services Agency ("CBSA"), will typically oppose the appeal. While both the IAD and the CBSA are both part of the federal government, they do not work together. It is up to the sponsor to convince a Member (a decision-maker) of the IAD in a hearing in person that the appeal should be allowed. It is highly recommended that the appellant/sponsor take up legal counsel for this appeal.

 

What does the sponsor need to do to win his or her appeal? Specifically, if the sponsorship application was refused due to the spouse's criminal record, or for financial reasons, the sponsor or legal representative will need to convince the Member that there are sufficient humanitarian and compassionate reasons to allow the spouse to immigrate to Canada in any case. These factors can include hardship to the sponsor or their children if the spouse is denied the right to come to Canada. The sponsor should also demonstrate that the spouse has rehabilitated and no longer poses a danger to the public.

If the sponsorship application was refused due to the belief that this is an "immigration marriage", the sponsor and/or his legal representative will have to prove, that he or she and the spouse are in a genuine marriage. This is typically proven with documentary evidence of the relationship, including proof of correspondence, visits and financial support, and may be supported by witnesses who know the couple.

 

Appeals can often take one to two years or longer to be scheduled for a hearing before the IAD. This is a very long time to wait to be reunited with one's spouse. To deal with this problem, the IAD has established an early resolution process, called Alternative Dispute Resolution (ADR), which allows the sponsor an opportunity to meet with a representative of CBSA, and convince them to consent to the appeal. If CBSA does not consent, the matter will then be scheduled for a hearing before an IAD Member.

 

The hearing takes place at the IAD offices, with the sponsor present. Typically, the sponsor and the spouse are both expected to give testimony before the IAD at their hearing. If the spouse is overseas, he or she will be allowed to testify by teleconference, if that evidence will be relevant.

 

Given the complexity of the issues and procedure at these hearings, and the importance of the decision to the sponsor and his or her spouse, it is best to consider hiring a qualified Immigration consultant to represent them before the IAD. The representative can help advise on documents and witnesses you may wish to present to the IAD in considering the appeal, and can assist you at the hearing in presenting your case.

 

In the end, if the IAD grants the appeal, then the sponsorship application is returned to IRCC for final processing. IRCC may not refuse the application for the same reason as before, although they may refuse it for a new reason.

On the other hand, if the IAD refuses the appeal, then the only recourse for the sponsor is to apply to the Federal Court to judicially review the IAD decision. This is a very limited process, which may be pursued on legal grounds only.

 

As a final note, sponsors must be aware that their application to sponsor their spouse can be refused because they failed to report the spouse in the sponsor's own application for permanent residence, if they were in a relationship at the time. Immigration law treats this as a very serious offence called misrepresentation and the IAD has no humanitarian and compassionate discretion to allow the sponsorship appeal if the sponsor is caught by this section of the Act. There may, however, be other options available. This highlights the importance of always providing full and correct information in all Immigration applications.

 

Our Regulated Canadian Immigration Consultant are trained, licensed and accredited to assist you with your Sponsorship appeal process at IAD and represent you.

 

If your sponsorship application has been refused, you can contact us for a review of your refusal and to file an appeal and/or represent you at the Immigration Appeal Division of IRB or to simply request for a mediation and then represent you at the Alternate Dispute Resolution (ADR).

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