Ways to Challenge Negative Immigration Decisions
The Immigration Appeal Division (IAD)
What kinds of cases can be appealed?
- refusals of sponsorship applications for members of the family class
Some examples:
- the sponsor does not meet financial requirements,
- the applicant is found not to be a member of the family class,
- in spousal sponsorships, the marriage is found to not be genuine
- An appeal to the IAD may be based on questions of law, fact, or mixed law and fact, or failure to comply with principles of natural justice.
Humanitarian and Compassionate Considerations
It is also possible to argue that there are humanitarian and compassionate (H and C) considerations that warrant granting special relief. H and C considerations include:
- degree of establishment in Canada
- hardship that would result (to both the person being denied or removed and the family members in Canada)
- the best interests of any child affected by the decision.
- In cases of removal orders due to criminal inadmissibility, the Court can also consider the seriousness of the offence and possibility of rehabilitation.
However, it is important to note that when in Spousal Sponsorship applications, a person being sponsored is considered not to be a member of the family class, the IAD cannot consider humanitarians and compassionate considerations.
What is the procedure like?
It is important to consult with legal counsel as soon as possible because you have a limited amount of time (30 days for sponsorship refusals and removal orders, 60 days for loss of permanent residence) to file a notice of appeal after receiving reasons.
Before a hearing related to a sponsorship, you may have to attend mediation with an IAD dispute resolution officer. If the mediation does not resolve the appeal or mediation does not occur, you will have the opportunity to present your entire case including legal arguments and evidence that was not presented at the admissibility hearing or with your application. The minister’s counsel also has the opportunity to do this.
If the IAD grants the appeal, immigration officials must continue processing the application or refrain from removing the individual. The IAD can also stay a removal order, which has the effect of putting it on hold until making a final decision. While a removal order is stayed the individual is subject to certain conditions set by the IAD, such as reporting regularly to border officers. Successful residency appeals allow the individual to maintain their permanent residence status.
Judicial Review in Federal Court
If the IAD dismisses your appeal or you do not have the option to appeal, you can apply for leave, which is like asking for permission, to have the Federal Court review the case. Unlike the IAD, this is mainly done through written submissions and you cannot present new evidence. There are strict timelines and the application for leave has to convince the Court that there is an arguable case.
What are the possible outcomes?
If the Court does not grant leave, then you cannot continue with the judicial review and you will not be able to appeal this.
If the Court grants leave, it can either:
- allow the judicial review and the matter will typically go back to the IAD or to the immigration officer for reconsideration.
- dismiss the judicial review (in limited circumstances, you can make an appeal to the Federal Court of Appeal.)
What are the common cases that can be judicially reviewed?
- Decisions on applications for work or study permits, temporary resident permits and permanent residence
- Decisions on applications for consideration on humanitarian and compassionate grounds
- Admissibility findings by immigration officers or the Immigration Division
- Removal orders
Judicial reviews are generally available when a decision-maker has made an error in law, a finding of facts that is inconsistent with the evidence or a breach of rules for procedural fairness and natural justice. If you suspect this has happened with your case. Please contact our office as soon as possible, as the deadlines are very strict.
An appeal to the Federal Court must be initiated within 15 days from the day the decision is received in writing in the case of an application refused from within Canada, and 60 days for a decision made at a visa office outside of Canada. “Received in writing” means that either the applicant or the applicant’s representative has received a written decision, whether that be by mail, fax, email or other means. The 15 or 60 days runs from the date the decision is actually received, not the day the decision is dated.
Please book a consultation with us, if you find yourself in this situation.