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.
Appeals go to the Immigration Division (ID) or the Immigration Appeal Division (IAD), both 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.
All decisions made by 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 is filed by completing an appeal form. There is time limit in the filing of the appeal.
If you are not happy with the decision of the IAD, you may seek permission and apply to the Federal Court for judicial review
This link will provide more information on the types of appeals and the requirements. The information provided is based on brochures and bulletins from the IRB website http://www.irb.gc.ca. Our brochure contains only general legal information. The law can change, and each person’s situation is different. If you have any question about your specific situation, please consult your local community legal clinic, community agency or an immigration lawyer.
By Topic List
This brochure looks at:
- Who has the right to appeal?
- What kinds of decisions can be appealed under the immigration law?
- Who decides the appeal?
- What is the appeal process?
AN OVERVIEW OF APPEAL RIGHTS AND PROCESS
Generally speaking, only permanent residents of Canada have the right to appeal an immigration decision. In some limited situations, “foreign nationals” may have a right to appeal from the issuance of a removal order.
A permanent resident is a person who is allowed to live permanently in Canada and who may later apply to become a Canadian citizen (provided that he or she meets the citizenship criteria).
A foreign national is a person from another country who is not a Canadian citizen or a permanent resident.
This brochure only covers appeals by permanent residents.
What Kinds of Decisions may be Appealed?
Permanent residents have the right to appeal under the following circumstances:
- As sponsors who wish to bring family members to Canada, they can appeal if their sponsorship applications have been refused by Citizenship and Immigration Canada (CIC)
- Permanent residents who have removal orders made against them have the right to appeal the orders
- Permanent residents found not to have met their residency obligation (i.e., they have not resided in Canada for at least 730 days in a five year period) can appeal that finding
Who Makes Decisions on Appeal?
Appeals made by permanent residents on immigration matters go to the Immigration Division (ID) and the Immigration Appeals Division (IAD) of the Immigration Refugee Board (IRB).
The IAD and ID are both administrative tribunals and must follow a process similar to what happens in a court, although they are less formal.
The person who hears and decides the case is called a member. IAD and ID members are appointed by the Government of Canada. They are supposed to be impartial.
Whether you are appearing before a member of the IAD or the ID, there are certain things you should know about these hearings.
- In the case of permanent residents, hearings before IAD and ID are public hearings which means that people not related to your case may attend to observe. This does not happen very often though.
- These hearings are usually held in person. Sometimes the hearings are held – in whole or in part – by videoconference or teleconference. No matter what form the hearing takes, it must always be fair.
- The hearings will be conducted in either English or French. If you are not fluent in either one of these official languages, you have the right to request an interpreter and one will be provided for you by the Board.
- Each division has its own rules of procedure. The rules cover such matters as time limits, evidence, documents and responsibilities of counsel as well as other people appearing before the Board.
- All decisions are based on the evidence provided and the law that applies to your case.
- Members must provide reasons for their decisions. Usually after hearing a case, the member will not give his/her decision right away. The decisions are usually put in writing and mailed to the parties at a later date. It usually takes several months before the decision is mailed out.
- At the hearing, you have the right to be represented by legal counsel at your own expense. Under the current law, if your counsel is paid, then only lawyers, immigration consultants and paralegals who are licensed to practice immigration law can represent you in an immigration matter, including your appeal.
- You have the right to be heard and to present evidence and arguments.
- You have the right to an interpreter.
- You may call witnesses to support your case.
The Immigration Division (ID) holds admissibility hearings for people who are believed to have contravened the Immigration and Refugee Protection Act (IRPA). This usually happens when the Canada Border Service Agency (CBSA) decides that a person has done something which makes them “inadmissible” to Canada, i.e., they should not be allowed to either enter Canada, or if they are already in Canada, they should be ordered to leave.
The ID also holds detention reviews for people who are detained by CBSA for immigration reasons. If you are detained, you have a right to have the detention reviewed. You should seek legal advice and representation immediately.
When may a Permanent Resident be Considered inadmissible?
CBSA may ask the ID to hold a hearing to determine if a permanent resident is inadmissible if that person:
- has failed in some way to comply with the immigration law
- is a security threat
- has violated human or international rights
- has been involved in crime or organized crime
- has engaged in misrepresentation
Misrepresentation means you misrepresented certain facts, or failed to disclose certain information at the time you applied for permanent resident status. This information must have been relevant to your application. For instance, when you applied to immigrate to Canada, you did not disclose the fact that you had a dependent child. You subsequently tried to sponsor the child to Canada. When this happens, CIC checks to see if you have declared this child in your initial application. If you have not, CIC may initiate an investigation against you for misrepresentation. Misrepresentation may also be alleged against you if, for instance, you were sponsored by your spouse to Canada but just before coming to Canada, you and your spouse became separated and you did not inform immigration about the change in your marital status.
What Happens at an Admissibility Hearing?
When the CBSA requests an admissibility hearing, it will prepare a report which explains why you should not be allowed to enter or remain in Canada, including the specific section of the immigration law that CBSA claims you have breached. The report will be sent to you and to the IRB. The ID will then hold a hearing.
Before the hearing, you should receive further information from CBSA about the case they have against you. At the hearing, a person representing CBSA, called the Minister’s Counsel, will tell the ID member why you should not be allowed to enter or remain in Canada. You have the right to respond to what the Minister’s Counsel says. You may also submit your own evidence or call your own witnesses to support your case.
After considering all the evidence, the ID member will make a decision. If the member decides to issue an order to remove you, you have the right to appeal that decision to the IAD. If the member decides not to issue a removal order against you, the CBSA will also have the right to appeal that decision to the IAD.
Types of Appeals before the IAD
The Immigration Appeal Division (IAD) hears four types of immigration appeals:
- Appeals by sponsors in family class cases
- Appeals of removal orders made against permanent residents
- Appeals by permanent residents found not to have met residency requirements
- Appeals by CBSA of decisions on admissibility made by Immigration Division
1. Sponsorship Appeals
If you are a Canadian citizen or a permanent resident and your application to sponsor the immigration of a close family member to Canada has been refused, you may appeal to the IAD. Some of the most common reasons for rejecting sponsorship applications are:
- If you are sponsoring your spouse and immigration believes that your spouse entered into the marriage with you for the purposes of immigrating to Canada or that your marriage is not genuine
- If you are sponsoring your parents, you do not meet the minimum income requirement to be a sponsor
- If you are sponsoring your spouse or your parents, immigration believes that your family members will not be able to support themselves and will be relying on social assistance once they come to Canada
- Your family member has a certain medical condition which immigration believes will cause an excessive demand on Canadian society
In the following circumstances, you may not appeal if your family member has been found to be inadmissible due to:
- A serious criminal offence that was punished in Canada by a term of imprisonment of 6 months or more
- conviction of a crime outside of Canada which the foreign conviction or criminal act carries a maximum sentence of 10 years or more under Canadian law
- Involvement in organized crime
- Security grounds
- Violations of human or international rights, or
- Misrepresentation (unless the person is your spouse, common-law partner or child)
In situations where you may file the appeal, you have 30 days after you receive a copy of the decision to appeal to the IAD.
An appeal is filed by completing an IAD appeal form. Canada Immigration will send you a copy of this form with the refusal letter. This form can also be downloaded and printed out from the IAD website: http://www.irb.gc.ca. The completed form can be mailed to IAD or delivered there in person.
Sometimes it may be unclear as to whether the IAD could hear your appeal. One example is when you sponsor a family member, such as a child, but you had never declared you had this child in your own application for permanent resident to Canada. The child is therefore “excluded” from the family class definition. In that case, there are different legal opinions about whether the sponsor has the right to appeal the decision to IAD. It is best to seek legal advice if you are in this situation.
2. Removal Order Appeals
Permanent residents who have been issued a removal order by the ID may also appeal to the IAD. However, you may not appeal if you have been found to be inadmissible to Canada because of:
- A serious criminal offence that was punished in Canada by a term of imprisonment of 6 months or more
- conviction of a crime outside of Canada and the foreign conviction or criminal act carries a maximum sentence of 10 years or more under Canadian law
- Involvement in organized crime
- Security grounds, or
- Violations of human or international rights
An appeal from a removal order must be filed within 30 days of its issuance. There will be a hearing before an IAD member to decide if the order is valid. If the appeal is allowed, the removal order is set aside and you will be allowed to remain in Canada. If the appeal is dismissed, the removal order will be upheld and you will have to leave Canada.
Instead of deciding to allow or dismiss the appeal, the IAD may decide to “stay” the removal order for a period of time. This means that the order is temporarily frozen. The IAD will consider your appeal at the end of this stay period (e.g. two or three years later). If the order is stayed, the IAD will impose certain conditions on you, such as reporting regularly to a CBSA office or advising the CBSA every time you move, during that time period. The IAD may, at any time, change the conditions or cancel the stay. If the IAD cancels the stay, it will then decide to either allow or dismiss the appeal.
3. Residence Obligation Appeals
Generally speaking, IRPA requires permanent residents to be physically in Canada for at least 730 days out of every five years. If you are outside of Canada and a visa office finds that you have not met this residency obligation, you may lose your permanent resident status. You may appeal that decision to the IAD. You must appeal no later than 60 days after receiving the decision letter.
In some cases, you may be able to get a travel document to let you enter Canada for the hearing. If you are not in Canada for the hearing, the hearing may be held by telephone.
If the appeal is allowed, you will be able to keep your permanent resident status. If the appeal is dismissed, you will lose your permanent resident status. If you are in Canada, the IAD will order your removal from Canada.
4. Minister’s Appeals
The Minister representing the Government of Canada may also appeal a decision on admissibility made by the ID to the IAD.
General Information about Appeals before the IAD
Generally speaking, if you are appealing to the IAD, you need to note the following:
1. Grounds for Appeal
The IAD may allow an appeal and set aside the original decision if there was:
- an error in law or fact
- a breach of the principle of natural justice
In some cases, the IAD may give special relief and allow an appeal based on humanitarian and compassionate considerations including the best interests of a child. In sponsorship appeals, the IAD will only consider granting this special relief if the permanent resident who is appealing meets the definition of “sponsor” and the family member being sponsored meets “family member” definition under IRPA.
2. What Happens after an Appeal is Filed
To start your appeal process, you have to file a Notice of Appeal. This form usually comes with the decision that you want to appeal from.
After you file the Notice of Appeal, you will receive a letter from the IAD acknowledging that it has received your notice.
In the case of spousal sponsorship appeal, sometime after you have filed the appeal, the Minister’s Counsel will send you a record containing documents regarding your appeal.
You may also at a later date receive a letter from the IAD to appear at an assignment court on a specific time and date. You should be there on the date and time stated. If you are ready to go ahead with the appeal, the IAD will give you a date of appeal at the assignment court.
Some sponsorship appeals go through an informal alternative dispute resolution (ADR) process. If your case is chosen for ADR and you agree to ADR, this means you will sit down with the Minister’s Counsel to discuss your case. You will be questioned by the Minister’s Counsel. If your case is settled through ADR, you do not have to go through a full hearing and your application to sponsor your family member will continue to be processed. If not, you still have the right to continue with your hearing before a different member of the IAD.
When an appeal hearing date is assigned, you should be ready for the hearing on that date. If you are not ready or if your lawyer is not available on that day, you or your lawyer may ask for the date to be changed to a later date by sending a letter to the IAD explaining your situation. The IAD may or may not agree to change the date of the hearing depending on whether they think you have good reasons for making this request.
Sometime before the hearing date, you will receive a package prepared by the Minister’s Counsel. This package should contain the material the Minister has relating to your case. If you receive this package, make sure you bring it to your lawyer.
The first thing you should do is to consult with a lawyer if you do not have one already.
It is your responsibility to show that the decision you are appealing is not legal. In some cases, you may also appeal on the basis of humanitarian and compassionate grounds. Speak to a lawyer about your specific case to see what grounds of appeal apply in your case.
It may be some time after you have filed the appeal before you have your IAD hearing. In the meantime, you should start collecting evidence that is relevant to your case. Depending on what your appeal is about, the evidence you need may include documents, letters, photos, information about the relationship between you and your family members, information about your children, and information about yourself (such as income and employment information).
If you would like to use these documents at your hearing, you must make two copies of all of your documents. You must send one copy to the IAD and one copy to the Minister’s Counsel. Their addresses are on the material that the IAD sends to you after you have filed your appeal. The documents must be received at least 20 days before the hearing. If you do not send in your documents in advance, the IAD member may not let you use the documents at your appeal hearing.
If your documents are not in English or French, they must be translated and the translation must be sent along with one copy of the documents to the IAD and one copy to the Minister’s Counsel. The person who translated the documents must attach a statement certifying that the translation is accurate.
Even if you have provided copies of your documents before the hearing, you must bring the original documents to the hearing if you have them.
If you would like to bring witnesses to the hearing, you must let the IAD and the Minister’s Counsel know at least 20 days before the hearing. You have to tell them who the witnesses are and why these witnesses will be testifying at your appeal hearing. You may call more than one witness. There is a form that you will need to fill out for the witnesses. If the witness is not in Canada, he or she can testify via teleconference. You must let the IAD and Minister’s Counsel know about this too so that the IAD can set up teleconferencing at your appeal hearing.
If you or your witness needs an interpreter, you must let the IAD know at least 15 days before your hearing. The easiest thing to do is to let them know this at the same time you file copies of your documents and your witnesses’ list, if any.
As you are the one asking for an appeal, you get to present your evidence first. If you have counsel, your counsel will help you by asking you questions so that you can give your evidence. If you do not have counsel, you should tell the IAD member what you think is important in your case.
The IAD member may have questions for you and may ask you these questions while you are giving your evidence or after you finish giving your evidence.
After you give your evidence, the Minister’s Counsel will also question you on the evidence you have given. The Minister’s Counsel’s job is to show that the original decision is correct. He or she will try to ask you questions to show, for instance, that what you have said is not true or that it is not supported by the evidence in the case.
After your testimony, you may ask your witness, if you have any, to testify. The witness will go through the same process as you.
If the Minister’s Counsel decides to call a witness (which is not usually the case), you have the right to question their witness as well after his/her testimony.
After all the witnesses have testified, you or your lawyer will have a chance to explain why you think you should win the appeal. The Minister’s Counsel will then make his/her comments about the case. Finally, you will have the chance to respond to the comments made by the Minister’s Counsel.
Usually only half a day is scheduled for the hearing. Sometimes though, you will need more time to present all your evidence. The IAD member may schedule another hearing date in order to continue the hearing until all the evidence and submissions have been presented.
The IAD member may, at the end of the hearing, give you the decision orally. In most cases though, the IAD member will send you the decision and the reasons by mail at a later date.
Also, anything could happen at the hearing that complicates the process. For instance, sometimes there may be a problem with the interpretation. If you have any concerns during the hearing, you should raise your concern with the member. If you do not say anything at that time, you may not be able to raise it after you have received a negative decision from the IAD.
5. Judicial Review of IAD Decisions
If you are not happy with the decision, you may apply to the Federal Court for judicial review. However, you must first ask for the Court’s permission, and in most cases, the Court does not grant permission. Therefore, it is very important for you to present your case as best as possible at the appeal hearing. The more evidence you could provide the better.
On the other hand, if you win at the IAD, the Minister’s Counsel may also try to challenge the decision at the Federal Court. You should get legal advice if you are in that situation as the Court process is quite complex.
Often someone who has lost an immigration case will talk about “appealing” an immigration decision to the Federal Court. Actually, the Federal Court does not hear “appeals” from immigration decisions. A “judicial review” is different from an appeal. If a person has the right to appeal, usually this means at the appeal hearing the person has a chance to present all the facts – and even bring in new facts – as well as arguments in support of his or her case. In a judicial review, the Court will usually consider the merits of the case based only on the information that had already been presented to the immigration authorities, and the applicant has to show that some legal errors had been made in the case. The Court will not let you win the case even though the judge may disagree with the initial decision.
Where to get help?
You should consult a lawyer. If you don’t have a particular lawyer in mind, you can check the YellowPages phonebook or phone the Lawyer Referral Service of the Law Society of Upper Canada at 416-947-3330 or toll free 1-800-268-8326 to get referral to paralegal or immigration lawyers.
If you do not have the financial ability to hire a lawyer, you can try to apply for legal aid. You can check Legal Aid Ontario’s contact information in the “Legal Aid” section of the WhitePages phonebook or at your local community legal clinic. Contact information for community legal clinics is available in the “Legal Aid” and “Legal Clinic” sections of the WhitePages phonebook and the “Lawyers” section of the YellowPages, or on Legal Aid Ontario’s website at: http://www.legalaid.on.ca/.
Reference Link : The Immigration Refugee Board website has a number of information brochures and bulletins about the IRB procedures. The material contained in this brochure is based in part on the materials produced by the IRB. For more information about the IRB, visit: http://www.irb.gc.ca
This booklet provides general information only. Each person’s situation is different and the law can change. If you have any legal issues, please contact a lawyer or local community legal clinic.