Make an Immigration Appeal

Make an Immigration Appeal

Canada is known for its diverse and inclusive society, making it a popular destination for immigrants from around the world. However, immigration applications can be complex, and sometimes, applicants may face rejection. If your immigration application to Canada has been denied, you have the option to make an immigration appeal to have your case reviewed. Keep reading this article to learn how to make an immigration appeal in Canada.

Immigration and Refugee Board of Canada and Immigration Appeal Division (IAD)

Immigration appeals are managed by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) of Canada. The IAD is an independent tribunal that hears appeals of decisions made by Immigration, Refugees and Citizenship Canada (IRCC).

Types of Immigration Appeals and General Requirements

There are four types of immigration appeals.

1. Sponsorship appeal: Canadian citizens or permanent residents have the right to make an immigration appeal if they have sponsored a family member whose application for a permanent residence visa was denied. 
2. Removal Order Appeal: Permanent residents of Canada, individuals with a permanent resident visa, as well as Convention Refugees or Protected Persons who have received a removal order have the option to make an immigration appeal.
3. Residency Obligation Appeal: If you applied for a travel document from a Canadian visa office while abroad and your application was rejected, you have the right to make an immigration appeal. If you were present in Canada when you applied and subsequently received a removal order due to not meeting your residency obligation, you are required to make an immigration appeal and initiate a removal order appeal.
4. Respond to a Minister’s Appeal: When the Immigration Division decides in your favour, permitting you to remain in Canada, the Minister of Public Safety can appeal this decision to the IAD. In this situation, your responsibility is to respond to this appeal and present your case to defend the decision made in your favour.

There are four grounds under which you can make an immigration appeal.

1. An error in law or fact was made in the original decision.
2. A principle of natural justice was breached in the original decision.
3. The decision was unreasonable.
4. The decision was made in bad faith.

You cannot make an immigration appeal if permanent residents or individuals sponsored by Canadian citizens are found inadmissible to Canada for one of these reasons.

1. A person was convicted of a crime that was punished in Canada with a sentence of six months or more.
2. They have committed or were convicted of a crime outside Canada that would be punished in Canada by a prison term of ten years or more.
3. A person was engaged in organized crime, such as smuggling people or laundering money.
4. They are a security threat by trying to overthrow a government or taking part in terrorism.
5. A person has violated human or international rights, such as committing war crimes.

The Process to Make an Immigration Appeal

When you have grounds to make an immigration appeal, the first step is to file a Notice of Appeal – Sponsorship Appeal, Notice of Appeal – Removal Order Appeal, or Notice of Appeal – Residency Obligation Appeal within 30 days of the date of the original decision. Depending on the type of appeal, you also ought to provide the removal order or the officer’s decision with the written reasons for the application refusal.

Other forms may be required when you make an immigration appeal.

1. Notice of Disclosure Form. This form is used to indicate how and when documents were provided to the Minister’s counsel when submitting documents to the IAD.
2. List of Witnesses Form. This form is used to provide a list of individuals who will testify at a hearing with the IAD, including the appellant and any other witnesses. The deadline for submitting your list of witnesses to the IAD and Minister’s counsel is no later than 30 days before the scheduled hearing.
3. List of Documents Form. If multiple documents are being submitted to the IAD, this form is used to provide a list of these documents for reference. All documents must be in English or French to make an immigration appeal.
4. Confirmation of Hearing Needs. This form is used to inform the IAD of any interpreter or witness needs for a hearing.
5. Notice of Withdrawal of Appeal. This form can be used to withdraw an appeal, but it should only be used if no essential evidence has been accepted in the hearing of the appeal.

The second step is to prepare your case and make an immigration appeal. The rejection letter you receive from the immigration authorities provides the specific reasons for the denial that will help you make an immigration appeal.

You can use one of these types to make an immigration appeal.

1. Appealing a decision about sponsoring a spouse or partner that involves allegations of a bad faith relationship. You need to make an immigration appeal and demonstrate that your relationship with the sponsored person is genuine.

Additionally, you can call upon other witnesses, such as friends or family members, who can attest to your relationship’s closeness. When you make an immigration appeal, it is also essential to gather documentation that illustrates the depth of your relationship, such as letters, phone bills, photographs, and plane tickets.

1. You may appeal a decision about parents and grandparents sponsorship, connecting to your income.Your income must exceed the Minimum Necessary Income (MNI) by 30% for your family size, including the family members you are sponsoring.

To make an immigration appeal, you have two courses of action: demonstrate that you possessed the necessary income at the time you submitted your sponsorship application or establish compelling humanitarian and compassionate grounds for your appeal.

1. Appealing a removal order based on misrepresentation. Misrepresentation refers to the act of providing information that is false, deceptive, or incomplete. If you are assured that there was no misrepresentation, you must make an immigration appeal and provide both testimony and documentation as evidence supporting the veracity, precision, and completeness of the information you provided.
2. Appealing a removal order based on residency obligation. You have three options to make an immigration appeal: demonstrate that you were present in Canada for the mandated duration, show that you had valid and acceptable reasons for your absence from Canada, or present compelling humanitarian and compassionate grounds for your appeal.
3. Appealing a removal order, which is based on criminal activity in Canada.To make an immigration appeal, you have two options: demonstrate that you have not been convicted of a serious crime, as determined by the Immigration Appeal Division (IAD) or present compelling humanitarian and compassionate grounds for your appeal, such as the possibility of rehabilitation.
4. Appealing a residency obligation decision made outside Canada. To make an immigration appeal, you have three options: demonstrate that you met the mandatory residency requirement by proving your presence in Canada for the required duration, provide evidence of an acceptable and justifiable reason for your absence from Canada, or establish that there exist compelling humanitarian and compassionate grounds for your appeal.

 

Alternative Dispute Resolution

An Early Resolution Officer (ERO) may reach out to you to gather additional information related to your appeal and engage in discussions regarding your case. In certain cases, your appeal may be scheduled for an alternative dispute resolution (ADR) conference. An ADR conference involves an informal meeting among you, the Minister’s Counsel and an ERO to delve into the case, clarify any issues, and foster agreement on a decision from both sides. If your appeal is successfully resolved during the ADR conference, there will be no requirement for a formal hearing. You will receive a decision confirming the resolution of your case.

Hearing at the IRB

If an informal resolution is not achievable, you will receive a Notice to Appear. This notice will provide details such as the date, time, and whether the hearing will be conducted virtually, in person, or via telephone. Appeal hearings can be conducted using Microsoft Teams, held in person at various locations throughout Canada, or conducted over the phone.

The decision process of your immigration appeal can take about 60 days. If your appeal is granted, the decision of IRCC is overturned. In case of sponsorship, you can proceed with the process. In case of a removal order or residency obligations, your status remains unchanged.

If your sponsorship appeal is rejected, the IRCC decision to deny your permanent resident visa application still stands. In case of the removal order, it will be enforced, and the Canada Border Services Agency (CBSA) will initiate your removal from Canada. In case of a residency obligation appeal, you will lose your permanent residency status. If you are in Canada at the time of this decision, you will be issued a removal order.

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