The formal place that immigration appeals are made is the Federal Court of Canada. Most people choose to be represented by a lawyer at Federal Court.
A typical case would be a skilled worker or business (investor, entrepreneur, self-employed) immigration applicant who goes to the interview at the Canadian Consulate or Embassy overseas, meets with a visa officer and fails the interview.
The informal place that immigration appeals are made is the Immigration Appeal Division (“IAD”). Most people choose to be represented by a lawyer or an immigration consultant at IAD.
The IAD is a tribunal. This is an informal type of court where there is no judge but a “member” (“Member”) who acts as an informal judge and makes the decision. The Member is not required to be a lawyer. The rules, procedure and atmosphere are more informal.
The most typical cases that go to IAD for appeal are a rejected application for sponsorship of a spouse, parent or child. Other cases that go to IAD for appeal also include a rejected PR Card application and having a hearing to determine if someone will be allowed to remain in Canada due to criminal issues.
Sponsorship Appeals
If Citizenship and Immigration Canada (CIC) has refused the application of a Canadian citizen or a permanent resident to sponsor the immigration of a close family member to Canada, the sponsor may appeal to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB).
The sponsor has 30 days after the refusal to appeal to the IAD. Some sponsorship appeals go through an informal alternative dispute resolution (ADR) process. In most cases, a member (decision-maker) will hold a hearing of the appeal according to the IRB tribunal process. The appeal process involves two parties: the appellant and Minister’s counsel who represents CIC. The process also usually public, so media or members of the public may attend or report on the proceedings.
If the appeal is allowed and the original decision is set aside, CIC will resume processing the sponsorship application. CIC is bound by the IRB’s decision. However, it is possible for CIC to refuse the application on other grounds, and this may also be appealed to the IAD.
Either the Minister of Citizenship and Immigration or the sponsor may apply to the Federal Court of Canada for leave, or permission, for judicial review of the IRB’s decision. The Federal Court of Canada will either dismiss the application or return the case to the IAD for re-hearing.
Removal Order Appeals
A permanent resident of Canada, a refugee, or a foreign national with a permanent resident visa who has been ordered removed from Canada, may appeal to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB).
Note: A person may not appeal if he or she has been found to be inadmissible to Canada because of:
- a serious criminal offence punished in Canada by a term of imprisonment of at least six months
- involvement in organized crime
- security grounds, or
- violations of human or international rights
The person must appeal within 30 days of receiving the removal order from the Immigration Division (ID) or the Canada Border Services Agency (CBSA). In most cases, a member (decision-maker) will hear the appeal according to the IRB tribunal process. The appeal process involves two parties: the appellant and Minister’s counsel who represents the CBSA. It is also usually public, so media or members of the public may attend or report on the proceedings.
If the appeal is allowed, the removal order is set aside and the person may remain in Canada. If the appeal is dismissed, the removal order will be upheld and the CBSA could remove the person from Canada.
Instead of deciding to allow or dismiss the appeal, in many cases, the IAD may decide to stay the removal order. This means that, temporarily, it will not be carried out. The IAD will reconsider the appeal later, at a time set by the member hearing the appeal. If there is a stay, the person must also meet certain conditions, such as reporting regularly to a CBSA office. 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.
Either the appellant or Minister’s counsel may apply to the Federal Court of Canada for leave, or permission, for judicial review of any IRB decision. The Federal Court of Canada will either dismiss the application or return the case to the IAD for re-hearing.
Residency Obligation Appeal
Generally, the Immigration and Refugee Protection Act (IRPA) requires permanent residents to be physically present in Canada for at least 730 days out of every five years. If a permanent resident is outside Canada and a visa officer (also outside Canada) with Citizenship and Immigration Canada (CIC) finds that he or she has not met this residency obligation, the person may lose permanent resident status. The permanent resident may appeal the CIC decision to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB). However, the person must appeal no later than 60 days after receiving the decision letter from CIC.
The appellant may be outside Canada. If the appellant was in Canada at any time over the past 365 days, CIC must provide a travel document so that the person can travel to Canada. In other cases, the person may apply to the IAD for a travel document. If the IAD decides that the appellant must be at the hearing in person, it may issue an order. CIC will then issue a travel document to allow travel to Canada for the hearing. Otherwise, the hearing may be held by telephone.
Either way, a member (decision-maker) will hear the appeal according to the IRB tribunal process. The appeal process involves two parties: the appellant and Minister’s counsel who represents CIC. The process also usually public, so media or members of the public may attend or report on the proceedings.
If the appeal on residency obligation is allowed, the IAD will set aside CIC’s decision and the person will keep his or her permanent resident status. If the appeal is dismissed, the person will lose permanent resident status. If the person is in Canada, the IAD must order his or her removal from Canada.
Either the appellant or Minister’s counsel may apply for leave, or permission, from the Federal Court of Canada for judicial review of any IAD decision. The Federal Court of Canada will either dismiss the application or return the case to the IAD for re-hearing.