Appeals

IMMIGRATION APPEAL SERVICES

The majority of refusals made from the Canadian immigration authorities could be appealed to in a manner. The refusal of visa applications like Express Entry applications, work permits, study permits, or visas for visitors can be appealing at the Federal Court. Refusals for family-class applications like the sponsorship of spouses or partners, children or parent sponsorships could be appealed in the Immigration Appeal Division. The loss of permanent residence may frequently be appealed to the Immigration Appeal Division also.

Refused refugee claims may be appealed before the Refugee Appeal Division. There are various appeal-like requests that could be submitted, including Humanitarian and Compassionate applications, as well as application in the form of pre-removal Risk Assessment.

What is a sponsor appeal?

The appeals for sponsorship appeals are an appeal from Canadian citizen or permanent resident to the rejection by officials of immigration to approve their request to sponsor a family member such as their partner, spouse or child for permanent residency in Canada.

WHO CAN APPEAL A SPONSORSHIP DECISION?

Appeal hearings on sponsorship are held before an Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB).

IAD IAD is an independent administrative tribunal which is a kind of court that can examine immigration department decisions as well as hearing any evidence that is new. The IAD will determine if or not the decision made by the officials in charge of immigration should be rescinded.

Canadian citizen or resident of permanent residence whose request to be a sponsor for a relative in the family class was denied by IRCC is able to appeal the decision to the IAD. Family class members include foreign spouse, common law spouse, conjugal partner grandparents, parents or children.

Appeal to the sponsoring authority is not permitted when the foreign applicant was declared inadmissible under one category of these:

Serious crime is in Canada is punished with an imprisonment sentence of six month or more in jail or those who are convicted of a crime in a country other than Canada or have committed an offence outside of Canada which is punished in Canada by a maximum period of imprisonment that is at least ten years.

Organized criminality

Security reasons (terrorism and other terrorist acts, etc. );

Infractions to international or human rights or

False representation (only for sponsorships of parents).

PROCEDURE BEFORE THE IMMIGRATION APPEAL DIVISION IN SPONSORSHIP APPEALS

When a Canadian sponsors receive a letter from the immigration department denying the application to sponsor a family member, they are given thirty days in which to file an appeal the decision to the Immigration Appeal Division. The main reasons behind the rejection are:

For common-law partnership or spouse sponsorships, the primary reason for refusing is because immigration authorities don’t believe that this relationship is legitimate or they believe that the marriage was created solely for the purpose of obtaining immigration.

In the case of parental sponsorship applications, they are typically denied because the sponsor did not meet the financial requirements required to be able to sponsor their parents.

Other reasons for refusing to enter include medical or criminal inadmissibility or a mistake in the application for immigration.

Residency Appeal

Canadian permanent residents must reside physically in Canada for two year (730 days) from the previous five years. The decision on whether or whether a permanent resident has met the residency requirement is typically determined when an application to extend a permanently resident’s card as well as an application for travel permit is filed.

Once the application has been submitted, Canadian immigration authorities will determine if the applicant is in compliance with the residency requirement , and/or whether they fall within one of the categories that are exempt.

LOSING CANADIAN PERMANENT RESIDENCY

If the applicant fails to attain the two-year residency requirement or fails to meet any of the categories that are exempt the Immigration authorities issue a rejection letter informing the applicant that they has been denied permanent residence. The applicant is able to appeal to the Immigration Appeal Division (IAD) within 60 days.

It is also possible that the permanent resident arrives at the Canadian air terminal or the boundary that connects Canada as well as America. USA having expired or expired PR documents. The PR document is examined by immigration authorities at the entry point for not having met the residency requirements and is given a removal order. In such a case, an appeal may be filed in IAD within 30 days. IAD after 30 days.

Federal Court Appeals

REFUSED IMMIGRATION APPLICATIONS CAN BE APPEALED

Nearly every decision taken by immigration or citizenship authorities can be challenged by the process of Judicial Review within the Federal Court of Canada. For instance, a decision taken by a Visa officer to deny any Express Entry application, or the decision of the citizenship judge to deny the Citizenship application is both reversible in the Federal Court. That means the Court will look into the decision to determine if it was legal, and may change the decision in the event that they discover a legal lapse.

The exceptions to this rule are instances that have a right of appeal, like an immigration authorities to refuse the application for spousal sponsorship. In this case the sponsor is granted an appeal right before the Immigration Appeal Division and does not need to apply for an appeal to the Federal Court.

HOW LONG DO I HAVE TO APPEAL?

An application for leave as well as request for review by a judicial judge before the Federal Court must be made within the timeframes specified by the court, usually within 15 days of a decision given in Canada or within 60 days following a decision that is made outside of Canada It is crucial to act quickly in order to safeguard any appeals rights.

PROCEDURE AT THE FEDERAL COURT

An application for leave of absence and for Judicial review is a two-step application.

In the first instance, the Court will then review the evidence in writing before deciding whether or not to allow “leave” which is a hearing. It is the Court will only give leave if it is convinced that the applicant has a plausible case that could be successful. If leave isn’t granted then the application will be denied without a reason.

If the leave request is granted the next step of the application will be a review by the judicial system, which involves an appearance before the judge. The hearing gives the applicant or their lawyer with an opportunity to argue their legal arguments before an individual judge. In the immigration division, they will employ its own lawyer , who will challenge the review of the judicial process to argue the matter should not be heard. After hearing, the judge will make his or her decision on whether to grant the request or not, as well as providing reasons to support the decision. If the Court accepts the request then it is likely to remit the case to the tribunal that originally made the decision to decide again. In this kind of judicial review, the plaintiff requests the issuance of an order for certiorari which is an Latin term used to describe an order that directs the redetermination or revision of a decision.

ISSUES THE COURT WILL CONSIDER

A judicial review petition is not an appeal in full because the Court is only able to examine the decision of the inferior tribunal , in the light of the evidence presented before it, and determine if the decision was taken in conformity with laws. If the Court determines that there is an error that can be reviewed and decides to reverse the decision and refer the case back to the same tribunal for reconsidered by a different judge. The Court has no power to substitute its own decision to the tribunal. It is also not able to substitute its own decision for that of the tribunal. Court is also restricted to considering evidence before the lower tribunal , and will not take into consideration new evidence.

The issues that the Court will examine will be whether the decision-maker acted legally and within its legal jurisdiction and in the event that the choice was taken in a fair manner as well as whether or not the choice was reasonable the light of evidence. In determining the reasonableness of the conclusion in fact, or a mix of evidence and law the Court will accord the decision-maker who made the lower ruling a lot of deference. It is also to declare that the Court will only intervene when the decision is evidently flawed. However in the event that the Court determines that the tribunal in question did not act in a manner that was unfair to the procedure, it owes no deference , and the decision must be rescinded. The fairness and fairness in an administrative ruling are usually the primary issues to be considered in the majority of judicial review cases.

FURTHER APPEALS AVAILABLE AT THE FEDERAL COURT OF APPEAL AND THE SUPREME COURT OF CANADA

If the Federal Court judicial review is unsuccessful , there may be instances a second recourse to the Federal Court of Appeal. This means for an Federal Court judge in his or her decision , certifies the issue as being of general importance to the Court of Appeal to consider. A question is only granted a certificate if it involves the investigation of a new legal issue significant to the Courts and, in turn, is the determining factor in the Federal Court case. This means that there are only a handful of occasions that there is a chance that the Federal Court will certify a issue for the Federal Court of Appeal. If the question is certified, it’s up to any of the two parties involved to begin the appeal procedure. The appeal involves a hearing before three judges who will determine the issue certified as well as any other issues that are relevant. The review standard is evident and overriding mistakes in factual findings and accuracy in law-related issues.

A decision by the Federal Court of Appeal can be appealed at the Supreme Court of Canada. There is no certified question required for appeal, however, it is important to note that the Supreme Court has a leave requirement prior to an appeal be filed. A request of leave for appeal before the Supreme Court must demonstrate the existence of a legal matter that is of national significance. In general this Supreme Court will only consider cases that deal with crucial legal issues that are generally applicable across the nation. Therefore, getting permission to appeal is very rare. If permission is granted and appeal proceeds it will then be considered by a panel of between 9 judges. The verdict is the final word from the courts regarding the legal issues that they have decided to address and is binding for the lower courts and tribunals.

THE IMPORTANCE OF A LAWYER'S ROLE IN A JUDICIAL REVIEW CASE

Since judicial review cases require the submission of written documents to obtain leave, and attending an Court hearing to discuss the legal aspects this type of case is typically handled by a lawyer experienced with immigration cases in the Federal Court. While the Court can permit self-represented applicants however, the complexities of the procedure and applicable jurisprudence can be daunting for anyone who is not a lawyer and tries to appear in the court without representation. Therefore, it is highly recommended to seek the assistance of a skilled lawyer in the event of requesting judicial review.

It is also important to remember that the litigation process at the Federal Court is an adversarial procedure, and that the immigration department has its own attorney to defend its case before the Court. Lawyers from the immigration department are typically extremely experienced, and it is important that litigants have a lawyer who is experienced for the same chance of success. There is no requirement that the applicant reside located in Canada or be present in the Court in person. The case is handled entirely through an experienced Canadian lawyer, including appearances at Court.

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