Immigration Appeals (18:XI)

The Immigration Appeal Division (“IAD”) may allow an appeal and set aside an original decision: (i.) based on the grounds of an error in law or fact; (ii.) if there are sufficient humanitarian grounds (in some cases); or (iii.) if a breach of a principle of natural justice has occurred. Principles of equity are generally of greater concern in appeals concerning removal orders. In certain cases, the IAD may also give special relief on the basis of humanitarian and compassionate grounds (i.e. equitable grounds), considering all the circumstances of the case and especially in taking into account the best interests of a child. The IAD can (i.) allow an appeal, (ii.) dismiss an appeal, or (iii.) stay the removal and impose terms and conditions (IRPA s 68).

A. Sponsorship Appeals

If a Canadian citizen or permanent resident (PR) tries to sponsor a member of the family class and the application is refused, the citizen or PR can appeal the refusal to the immigration appeal division. Appeals must be made within 30 days of the day the sponsor is informed of the refusal. A member will hear the appeal following the tribunal process. Section 63 of IRPA specifies that the IAD can consider H&C applications only if the applicant is a confirmed family member.

Some sponsorship appeals follow an Alternative Dispute Resolution (ADR) process, also called Early Resolution. The appellant can always request ADR. The ADR process at the IAD usually involves a one-hour, in-person meeting with a CBSA hearings officer who will review the facts and question the Appellant sponsor. The IAD assigns a member to act as a dispute resolution officer (DRO) for each appeal that is selected for the ADR process. Counsel should also attend, but does not make submissions, and is primarily there to assist the Appellant. Despite this process, many of the cases that go through ADR will have a final result without the parties having to attend a full oral hearing, so clients may wish to request ADR if they believe the Appeal case is strong, is not especially complex, can be resolved without the direct testimony of the principal applicant (sponsored person), and that it can be dealt with about an hour.

IAD’s jurisdiction is limited to errors in law, fact, or mixed law and fact. IAD cannot override a negative sponsorship application on grounds of equity. Sponsorship applications made from within Canada, i.e. “in-Canada” class applications, cannot be appealed to the IAD.

B. Removal Order Appeals

Permanent residents, Convention refugees, and protected persons who have been ordered removed from Canada may file an appeal with the IAD. These appeals may be based on either legal or equitable grounds.

NOTE: If a person has been convicted and sentenced in Canada to six months imprisonment or more, they will not be able to appeal an order to the IAD. A conditional sentence order (CSO) is included in ‘imprisonment’.

Removal orders may not be appealed if the permanent resident has been found inadmissible because of:

1. serious criminality with a sentence of 6 months or more;
2. A foreign conviction (or committing an act outside Canada) carrying a maximum sentence of 10 years or more in Canada;
3. organized criminality;
4. security grounds; or
5. violations of human or international rights.

Appeals must be filed within 30 days of the removal order being issued.

For a comparison of the former inadmissibility regime to the new inadmissibility regime, please refer to: http://www.cic.gc.ca/english/department/media/backgrounders/2013/2013-06-20a.asp

NOTE: Because of the exclusion from appeal for people sentenced to six months or more, advocates in criminal trials where this may become an issue should ensure that the judge is aware of the immigration status of the accused, as it may affect sentencing (e.g. the judge may reduce the sentence to six months less a day, in which case an appeal of the removal order would be possible). For further details see Section XII: Immigration Issues at Sentencing.

C. Residency Obligation Appeals

Permanent residents outside of Canada who are determined by a CIC officer not to have fulfilled their residency obligation have a right of appeal before the IAD.

Appeals must be made within 60 days of receiving the written decision. Upon application, the IAD can issue an order that the person must physically appear at the hearing. Once the order is given, a travel document will be issued by CIC allowing the person to enter Canada for the hearing. If the appeal is allowed, the person will not lose permanent resident status. If it is dismissed, the person will lose permanent resident status, and the IAD will issue a removal order.

D. Federal Court (Leave and Judicial Review)

Always contact an immigration lawyer in cases where Federal Court is, or might be involved. Decisions by the IAD (or the Refugee Protection Division and the Immigration Division, where no administrative appeal exists) may be challenged by judicial review in the Federal Court of Canada. There is a 15 day filing deadline to apply for leave to appeal matters decided within Canada, and a 60 day deadline for matters decided overseas (IRPA, s 72), so a client must act quickly if they seek leave for judicial review. In the process of judicial review, the court does not try the case de novo; the role of the court is not to substitute its own discretion for that of the tribunal, but rather to ensure that the tribunal did not exceed its statutory authority. The court simply reviews the case to verify: that it was procedurally fair; that the decision-maker did not make any errors of law or unreasonable findings of fact; and that the decision itself was reasonable. See Chapter 20: Public Complaints for a more thorough treatment of judicial review. On a leave application, all arguments and evidence are submitted to the judge in written form without a personal appearance. The judge reviews the material and, if satisfied that the applicant has made an arguable case, grants leave. If the judge decides there is no arguable case, leave will be denied and there can be no further argument in the Federal Court. A decision made by the Federal Court may be appealed to the Federal Court of Appeal only if the Trial Division judge “certifies” a question as being of serious and general importance (s 74(d)).