Hearings and Appeals
Negative decisions can and do happen. If you disagree with a negative decision, it is essential that you begin the appropriate appeal process in accordance with Canadian law and that you do so in a timely manner, as certain specific time limitations apply to every type of appeal. You must follow the correct procedures in place within the established time limitation periods when exercising a right to appeal or you may lose that right forever.
Jurisdiction for appealing certain types of negative decisions may rest with the Immigration Appeal Division (IAD). Conversely, other types of decisions are within the Jurisdiction of the Federal Court of Canada and procedurally must go through a process of judicial review. It is important to consult with an experienced and qualified lawyer immediately after you receive a decision refusing your application in order to receive a comprehensive assessment of your legal rights.
Immigration Appeal Divison (IAD) Appeals
In an appeal to the IAD, the IAD will rehear the evidence in your case, distinctly different from a Federal Court of Canada Judicial Review process. The IAD examines cases before it for possible errors in law, in fact, and mixed law and fact, or for failure to observe a principle of natural justice. It also has the authority to reverse valid decisions on equitable grounds.
The IAD can grant a positive result if there has been an error in law or fact, if there has been a breach of natural justice. In certain instances, the IAD can even consider if there are sufficient humanitarian and compassionate reasons to grant the appeal and issue positive relief. However, it is important to note that the IAD jurisdiction to consider humanitarian and compassionate grounds is not the equivalent of filing an application for permanent residence under Humanitarian and Compassionate grounds. These two should not be mistakenly equated as the same. Also, the equitable jurisdiction of the IAD is limited and not necessarily available in all instances.
The IAD is an independent tribunal which sets its own procedures and establishes the rules of practice to be followed. It provides an independent review of certain decisions made under the immigration program. Given the complexity of the procedures, and the evidentiary rules recently implemented, the nature of the IAD process has increasingly resembled that of a court process. Lawyers are the most qualified professionals to conduct and execute a formal appeal process. Further, appearances at the IAD may be avoided altogether if proper disclosures are made in advance of the hearing and where both parties can come to terms on evidentiary and factual issues. In such cases, the parties may consent to the appeal being allowed without the necessity of a full hearing.
Examples of principal matters that may be brought before the IAD are:
- refusal of a sponsorship application for members of the family class;
- removal orders made against foreign nationals who hold permanent resident visas;
- removal orders made against permanent residents and protected persons at an examination or admissibility hearing;
- Minister’s appeal of a decision made by a member of the Immigration Division; and
- Appeals of overseas decisions on loss of permanent resident status.
The IAD is a court of record. It conducts public hearings on the basis of the adversary system and established judicial principles, rules and precedents. The IAD has all the powers, rights and privileges vested in a superior court of record with respect to any matter necessary for the exercise of its jurisdiction, including the swearing and examination of witnesses, the production and inspection of documents, and the enforcement of its orders.
IAD hearings are de novo and therefore not limited strictly to reviewing the evidence that led up to the refusal or removal order. The IAD has broader powers regarding the admission of evidence than regular courts since it is not bound by any legal or technical rules of evidence. During a hearing, the IAD may receive, and base a decision, on evidence it considers credible or trustworthy in the circumstances, even if the strict rules of evidence have not been met.
The IAD may dispose of an appeal by allowing it or dismissing it. In the case of an appeal against a removal order, the IAD may also direct that the execution of the order be stayed for a set period of time, with conditions attached. IRPA requires the in certain circumstances the IAD must impose mandatory conditions as specified under the Act. The IAD can reconsider a decision to stay a removal order at any time. A review of a stay may be initiated either by application by the appellant or the Minister’s counsel or on the IAD’s own initiative.
A decision that is delivered orally at a hearing takes effect when the member states the decision. A decision made in writing takes effect when the member signs and dates the decision.
Federal Court Judicial Review
Under Canadian law, if you disagree with a decision made under Immigration and Refugee Protection Act by a Government agency or a delegated authority such as a Visa Office or High Commission located outside of Canada, in most cases you have the right to appeal the decision to a higher authority. If jurisdiction for the principle matter rests with the Federal Court of Canada, your right to appeal is a process often referred to as an Application for Leave and Judicial review, or more commonly known as a Leave Application.
Specifically, the Application involves a two-stage process. Before a formal appeal can be heard, the applicant must first ask the court for permission or “leave” of the court. At this stage, the Leave application undergoes analysis to determine if the applicant has raised a serious issue involving an error in the interpretation or application of law, a serious factual error, or a violation of any principle of natural justice or procedural fairness. A judge of the Federal Court of Canada will review the Leave application at the first stage to determine if the applicant has raised an arguable issue that could succeed a trial, thus requiring a full hearing. If the Judge believes the same, the Judicial Review process will proceed into the second stage, an oral hearing on the matter.
Upon filing the Leave application, the applicant must specify if they have received the impugned decision and reasons. If not, the Minister must serve the same upon the Applicant. If the Leave application indicates that the Applicant has received the decision and reasons, then the Applicant will have a period of 30 days from the date the Leave application was filed in which he must prepare and file an Application Record (AR). The AR must include one or more supporting affidavit, including the Applicant’s affidavit, and a memorandum of legal arguments.
In a Leave application, the Minister of Citizenship and Immigration is often referred to as the Respondent. The Respondent must file its responding material within thirty days after being served with the AR. This process returns to the Applicant to provide an opportunity to reply to the materials contained in the Respondent’s Record (RR). The Applicant may file what is referred to as a reply memorandum within 10 days of being served with the RR. This effectively concluded the exchange of documents and filings as between the parties. A judge of the Federal Court will make his/her determination as to grant or deny the Leave application.
If the Leave application is denied, it has been determined that there is no right to appeal the decision. Such is often the case, as courts tend to show a great amount of deference to decision makers, making it very difficult to succeed on a Leave application. If leave is granted, the applicant has convinced the reviewing Judge that there is an arguable issue that could succeed a trial, thus requiring a full hearing. The Leave application process will proceed into the second stage, an oral hearing on the matter.
At the hearing of a judicial review application the court will only concern itself with the manner in which the decision was made, and what process it any was followed. In other words, it’s possible to disagree with a decision, but satisfy oneself that the decision maker in reaching the decision acted fairly, and within a reasonable realm within the authority granted under the Immigration and Refugee Protection Act. Such a find will likely lead a judge to dismiss an application for judicial review.
If you are able to succeed on an application for judicial review, do not expect the judge to grant the relief you might be looking for. The Judge will not have the power to make a decision that appears to be the right one, but will remand the application back to a different Visa officer for a determination, often with instructions.
Federal Court applications are extremely specialized and immigration consultants are not permitted to represent clients or appear in a court of law. Eddie H. Kadri and his team of leading professionals have been involved in a number of complex and highly sensitive Federal Court matters and they have the experience needed to assess the extent of your full circumstances and to represent you on such matters. If you would like assistance with an appeal matter, please feel free to contact us immediately to arrange a timely comprehensive legal consultation and to ensure your right to an appeal is preserved in accordance with Canadian law.
