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Immigration Appeals
Even though your immigration case has been refused, for entry to Canada that is not the final decision. There are two possible systems to appeal the decision; either through the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, or the Federal Court of Canada (FCC). The IAD manages appeals for family sponsorships, residency obligations, and removal orders, however the FCC handles a wide range of immigration application refusals.
The hearing before the IAD is a fresh hearing, and person can introduce new evidence which the CIC Visa Officer did not have, including Humanitarian and Compassionate considerations. The FCC, on the other hand, do not consider new evidence but only determines whether the CIC Visa Officer made a reviewable error.
GROUNDS FOR APPEAL
There must be a satisfactory reason for making an appeal. As per the appeal rules, there are following grounds for appeal:
An error in law or fact;
Any error by Visa Officer
A principle of natural justice was not observed; or
There are sufficient humanitarian and compassionate reasons to overcome a negative decision.
Appeal will not be heard at the IAD unless person has sufficient evidence to file under one of those grounds for appeal.
APPEAL RESTRICTIONS
An appeal cannot be made if applicant has been found inadmissible due to serious criminality, organized criminality, espionage or violating human or international rights. In addition, foreign nationals who have been denied a visa, work permit, or study permit may not appeal those decisions.
TYPES OF APPEALS
Residency Obligation appeals
Sponsorship appeals
Residency obligation appeals
If you married a foreign national, and then apply to sponsor them, to immigrate to Canada, or you sponsored another eligible Family member you can appeal the visa office’s negative decision, to the Immigration Appeal Division. Other examples, where you can appeal to this division, are the following:
a permanent resident of Canada, against whom a removal order to leave Canada is issued
a protected person, who was accepted by the Refugee Protection Division (RPD) as refugee, and eligible therefore to remain in Canada, has a removal order issued against him/her, as alleged by Immigration Canada
a permanent resident of Canada, loses his/her status, and must leave Canada for not complying with Canadian immigration legislation, as alleged by Citizenship and Immigration Canada (CIC)
The hearing before the IAD is a fresh hearing, and you can introduce new evidence which the Visa Officer didn’t have, including Humanitarian and Compassionate considerations. The FCC, on the other hand, will not consider new evidence but will only examine whether the Visa Officer made a reviewable error.
Sponsorship appeals at the IAD
If your application to sponsor your spouse, common law partner or other family member has been refused, you may appeal to the IAD. At the IAD, we can put forth your case afresh, with new evidence of your relationship that you had omitted in your original application. We can also highlight any Humanitarian and Compassionate considerations.
As your lawyers, we will research previous cases with facts similar to yours, prepare you and your family member for examination at the IAD as to your relationship history and other factors, and present your most favorable case.
The following chart illustrates a typical sponsorship appeal process:
Residency obligation appeals at the IAD
If you are a permanent resident, and have been found to have breached your residency obligation (i.e., meeting 2 years of residence out of 5 years), you could lose your permanent residence status. However, you have a right to appeal to the IAD.
With our legal knowledge of the factors that are considered by the IAD, we can assist you to present all the relevant facts to support your case, including Humanitarian and Compassionate considerations. These factors include length of absence, reasons for absence, hardship to you and your family if you lose your status.
The following chart shows the residency obligation appeal process:
Judicial Review by the FCC
Only lawyers have the right to present your case before the FCC, not immigration consultants.
Most decisions in immigration matters are subject to judicial review by the FCC. For example, if your application to immigrate as a Skilled Worker or a Business Immigrant was refused by the Visa Officer, we can help you to challenge the decision at the FCC if the decision was wrong or there was a breach of natural justice.
Review by the FCC is a two-stage process. In the first stage, the FCC reviews the documents and arguments and decides whether you have an arguable case worth proceeding. If you are granted permission to proceed (“leave to appeal”), we would go to the next stage.
The second stage would be a court hearing where we present your case and our arguments as to why the decision of the Visa Officer was wrong or there was a breach of natural justice.
Depending on whether the decision was made in Canada or outside Canada, you may only have 15 days to file the application for judicial review to the FCC. If you are the subject of a negative decision, you are advised to seek legal help as soon as possible.