Canadian Immigration Appeals

In Canada, individuals who are dissatisfied with certain decisions made by immigration authorities have the option to challenge these decisions through the Immigration and Refugee Board of Canada (IRB). The IRB is an independent body that provides decision-making on a range of immigration matters, including appeals regarding immigration applications.

Here’s an overview of immigration appeals in Canada, the process, and the available options:

Types of Immigration Appeals in Canada

1. Appeal of Permanent Resident Visa Refusals (Immigration Appeal Division – IAD)
   • Who Can Appeal: If you are a foreign national who applied for permanent residence in Canada and your application is refused, the sponsor (Canadian citizen or permanent resident) can appeal the refusal.
   • Grounds for Appeal: 
     • Family Sponsorship Refusals: If a family sponsorship application (e.g., spouse, parent, or child) is rejected, the sponsor can appeal the refusal to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB).
     • Humanitarian and Compassionate Grounds: In cases where the applicant has been refused on the grounds of insufficient evidence of eligibility for permanent residence, an appeal can be made based on humanitarian and compassionate (H&C) grounds.
     • Misapplication of Law: If the immigration officer made an error in the application of the law or regulations, an appeal could be made to the IAD.
2. Removal Orders (Immigration Appeal Division – IAD)
   • Who Can Appeal: Permanent residents or foreign nationals who have been issued a removal order (a decision ordering them to leave Canada) can appeal this decision.
   • Grounds for Appeal: 
     • Criminality: If the removal order was issued due to criminality or violations of immigration laws (e.g., overstaying a visa), the person can appeal to the IAD if they can show that the removal would result in undue hardship, particularly if they have close family ties in Canada.
     • Risk to Life: If removal would result in the person facing danger to their life or well-being, they may appeal based on humanitarian and compassionate grounds.
     • Compelling Circumstances: If there are exceptional circumstances that would justify the individual’s continued stay in Canada, they can argue that the removal order should be overturned.
3. Refugee and Humanitarian Protection Claims (Refugee Appeal Division – RAD)
   • Who Can Appeal: Individuals who have claimed refugee status in Canada but have been refused protection by the Immigration and Refugee Board (IRB) can appeal the decision to the Refugee Appeal Division (RAD).
   • Grounds for Appeal: 
     • If the refugee claimant disagrees with the IRB’s decision to refuse their claim, they may appeal the decision to the RAD.
     • The RAD can review the case on grounds such as errors in fact or law, or if there is new evidence that was not available at the time of the original decision.
     • Additional Information: If there are significant changes in the claimant’s situation or in the country of origin after the decision, the appeal can be based on this new information.
4. Temporary Resident Visa (TRV) Refusals
   • Who Can Appeal: While there is no direct appeal process for individuals refused a temporary resident visa (e.g., visitor visa), they may be able to reapply or request a review of the decision through a Judicial Review.
   • Judicial Review: Individuals can seek a judicial review in the Federal Court of Canada if they believe the refusal was based on an error of law, procedure, or a miscarriage of justice. This involves asking the court to review the decision and determine whether the process was fair and correct.

Appeal Process

1. Immigration Appeal Division (IAD) Appeals:

Step 1: Filing an Appeal

• Eligibility: If you are eligible to appeal, you must file a Notice of Appeal with the Immigration Appeal Division (IAD) within a set period after receiving the decision (usually within 30 days of the decision for permanent residents and 60 days for foreign nationals).
• Forms: You will need to complete the Notice of Appeal form (IMM 5475) and submit it along with any supporting documents.
• Fees: A non-refundable appeal fee may be required (check the IRB website for current fees).

Step 2: Preparing Your Case

• You will need to provide detailed arguments to support your appeal. This may include providing additional documents, explaining why the decision should be overturned, or showing that the original decision was made in error.
• Legal representation (lawyers or immigration consultants) is not mandatory, but it can help strengthen your case, especially if the appeal is complex.

Step 3: Appeal Hearing

• The IAD will schedule an appeal hearing, where you (or your representative) will present your case. The Immigration Appeal Division will review the decision, any new evidence, and hear arguments about why the decision should be overturned or modified.
• The decision-making process can be influenced by factors such as hardship, risk to life, public interest, and family ties in Canada.

Step 4: Appeal Decision

• After the hearing, the IAD will issue a decision. The IAD may: 
  • Allow the appeal (i.e., the decision is overturned).
  • Dismiss the appeal (i.e., the original decision stands).
  • Adjourn the case if additional time or information is needed.

2. Refugee Appeal Division (RAD) Appeals:

Step 1: Filing an Appeal

• You must file your Notice of Appeal to the RAD within 15 days of receiving the decision refusing your refugee claim.
• Fee: There is no fee to file a refugee appeal.

Step 2: Appeal Review

• Unlike IAD hearings, RAD appeals are paper-based and do not usually require an in-person hearing. The RAD will review your case based on the original evidence, any new evidence submitted, and arguments made in the appeal.

Step 3: RAD Decision

• The RAD will either: 
  • Allow the appeal (i.e., the refugee status is granted).
  • Dismiss the appeal (i.e., the refusal decision stands).
• If the RAD dismisses your appeal, you may have the option of seeking a judicial review through the Federal Court of Canada.

3. Judicial Review (Federal Court)

• What is it?: A Judicial Review is a process through which a court examines whether an immigration decision was made in accordance with Canadian law.
• When to Request?: If your appeal was dismissed by the IAD or RAD, or if you believe the immigration officer made a legal error (e.g., misapplication of immigration law, unfairness, or bias) in making the decision.
• Process: You file a request for judicial review with the Federal Court of Canada. If the court finds that the decision was legally incorrect, it may overturn the decision or order a re-hearing.
• Deadline: Requests for judicial review must be filed within 15 days of receiving the decision.

Conclusion

The immigration appeal process in Canada provides individuals with a chance to challenge decisions made by Canadian immigration authorities that they believe were made in error or unfairly. Depending on the type of decision being appealed (e.g., permanent resident visa refusal, refugee claim rejection, removal order), there are different appeal bodies such as the Immigration Appeal Division (IAD) or Refugee Appeal Division (RAD).

Appealing a decision can be a complex and lengthy process, but it is an important legal right for individuals who believe they were unjustly treated. It is always advisable to seek legal advice or representation to help navigate the appeal process effectively.