Any refusal you receive from a Canadian immigration authority may be appealed in court. In the majority of cases, the appeal will be heard in the Federal Court of Canada, but some appeals are also heard by the Immigration Appeal Division. If you proceed with an appeal of a decision made by the Immigration and Refugee Board, this has the benefit of delaying any removal orders that may have been issued as part of the decision you received. This means that you will be allowed to remain in the country until your appeal is resolved.
If you have had an application or claim denied by the Canadian Immigration authorities, and you want to know whether there is a chance the decision could be appealed, please get in touch with DUVADIE Law at your earliest possible convenience. Note that there are strict time deadlines associated with many appeals, so it is important to act as quickly as possible. Be prepared to provide all of the documentation involved in your application and a full description of your factual circumstances.
Judicial Review in the Federal Court of Canada
The primary method of appeal for immigration decisions is to seek judicial review by the Federal Court of Canada. Any refused application can be reviewed. In Canada, you must have a lawyer make the appeal application on your behalf. The general deadline is 30 days after the decision was communicated to the applicant, but there are exceptions, such as a rejection of a refugee claim by the Immigration and Refugee Board, which requires a notice of appeal to be filed within 15 days of the decision being handed out.
The Federal Court will consider whether immigration official properly applied the law in arriving at their decision, whether they had the required power to make such a determination, whether the procedure they used was fair, and whether the decision they made was reasonable considering the evidence before them.
Judicial review is a two-stage process. First, you must obtain leave by demonstrating that the decision was unreasonable or constitutes an incorrect application of the law. If you are successful, you proceed to application for judicial review stage. At this stage, your lawyer attends a hearing in Court and explains why you believe that the original decision was wrong. You are not obligated to attend the hearing, as your lawyer can appear on your behalf. In terms of outcome, the Federal Court will either accept the original decision or order that your case be sent back to be reconsidered. The Federal Court will only rarely reverse a decision on its own.
Appeals can typically only begin after you have received a decision from Canadian Immigration authorities. However, in the exceptional circumstance where the Immigration authorities have refused to respond to your application for a protracted period of time, it may be possible to seek judicial order (called a Mandamus order) from the Federal Court that requires them to make their decision.
Appeals to the Immigration Appeal Division
The Immigration Appeal Division is an independent administrative tribunal that hears appeals led by Canadian Citizens or permanent residents. The types of appeals that can be heard by the IAD include failed sponsorship applications, where a Canadian citizen or permanent resident has attempted their spouse or loved one but was rejected by the Immigration authorities (within 30 dates of the refusal). If a permanent resident has become subject to a removal order based on a criminal or an immigration offence, an appeal to the IAD can be made (with 30 days of receipt of order). Another example of a decision that can be appealed before the IAD is a residency appeal, if a permanent resident has lost status because it was discovered the Immigration authorities believe that the residency requirement is not being adhered to. This type of appeal must be brought within 60 days of being told that your status has been lost.
Unlike judicial review before the Federal Court, the individual who is the subject of the appeal must appear before the Immigration Appeal Division. The hearing will consist of presentations of new evidence in the form of documents, witness testimony, and oral submissions. The IAD may decide that the original decision was wrongly made, or that there are sufficient humanitarian and compassionate grounds to necessitate a reconsideration of our case. If you are successful, the IAD will send your case back to be re-evaluated. The IAD may also choose to affirm the earlier decision. If you do not receive a favourable judgment from the IAD, the option remains open for you to have that judgement judicially reviewed by the Federal Court of Canada.
If you have received an unfavourable decision from Canadian Immigration officials and would like to appeal, please contact DUVADIE Law at 613-422-1155 or Toll-Free at 1-855-422-1155.
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