Different Appeals in the Canadian Immigration System
You’ve applied to come to Canada (or bring a family member) and been refused? What can you do?
Perhaps you have heard you can “appeal” the decision. “Appeal” is a common word in the English language. What a layperson (or a lawyer, trying to communicate in simple terms with a client) calls an “appeal” might not technically be an appeal under immigration law. Here is a list of different kinds of “appeal” that exist in the Canadian immigration system.
Refugee Appeals
If you make a refugee claim and lose your case at the Immigration and Refugee Board (IRB)/Refugee Protection Division (RPD), you generally have a right to appeal to a similar tribunal called the Refugee Appeal Division (RAD). DVCLS does not generally get involved with these cases. You should speak to your refugee lawyer or call Legal Aid’s Refugee Law Office for assistance.
Immigration Appeals
Some negative immigration decisions can be appealed to a body called the Immigration Appeals Division (IAD). Examples of cases that the IAD hears include cases where you have been found ineligible to sponsor a family member, cases where someone has lost their permanent residence for being abroad too long, and cases where someone is at risk of losing their permanent residence for having been outside of Canada too long.
If you feel IRCC’s (Immigration, Refugees and Citizenship Canada) refusal of your case is unjust, getting to appear before the IAD is a great opportunity. You are allowed to submit new evidence to support your case as part of the hearing process. You will also have the opportunity to give oral testimony, as will witnesses (such as family and friends) who you call to support your case. But be prepared! You may also be cross-examined by the government’s lawyers who can take on very hostile tones.
It is important to note that many appeals are not just about whether IRCC’s decision was technically correct. You can often make a “humanitarian” appeal, arguing that the consequences of IRCC’s decision are unnecessarily harmful to you and/or an affected minor child. While appeals based on humanitarian factors alone may be less likely to succeed than appeals based on legal errors, they can be worth trying. The advantage of giving live testimony before a tribunal, is that that decision maker is forced to reckon with the real-life consequences of their decision.
Unfortunately, the IAD is not an option in many cases. People who apply for permanent residence through the Humanitarian-Compassionate stream do not have appeal rights. People accused of serious criminality (over an offence committed in Canada) only have appeal rights if they served a sentence shorter than six-months. People who were convicted of offences abroad have no appeal rights, and the same is true for people who “committed” (and were not convicted) of an offence abroad that could be punishable with a sentence of 10 years or more.
Judicial Review
While not all case-types are eligible for the IAD, you can still, generally, challenge immigration decisions. Judicial Review applications are made to the Federal Court. When you want to apply for Judicial Review you sometimes have to act quickly. Applications for Judicial Review on “matters arising within Canada” have to be made within 15 days of you receiving your negative decision (the deadline is 60 days for decisions made outside of Canada).
The Judicial Review process can feel more rigid than the IAD process as it is made before a Court, and ruled upon by official judges (IAD decision makers act like judges, but they have the less formal title of “Member”). This process is also mainly handled by lawyers. Unlike the IAD, the Federal Court does not allow you to submit new evidence towards your case. The process also does not generally involve live witness testimony. Instead, lawyers make written arguments to the Court, and may later be called to make oral arguments.
In IAD cases the job of your lawyer is to show that you are worthy of sympathy, and that IRCC can afford to change its original decision. During judicial reviews, lawyers are not given the freedom to make such arguments. Instead, they must prove that IRCC’s original decision was legally “unreasonable.”
Here is an example of how legal analysis looks different before the two bodies:
Sarah tried to sponsor her husband, Sami, to come to Canada. Sarah did not include very much evidence of her relationship with Sami when she applied to sponsor him. An officer determined their marriage was not real.
If Sarah appeals to the IAD, her lawyer will ask her why she didn’t provide proof with her original application. She can explain that she didn’t get legal advice before, and didn’t know IRCC would question the realness of her marriage. She says that since she found out she has gathered photos of her and Sami together, and letters from their friends congratulating them for the marriage, and presented them to the IAD.
If Sarah applies for judicial review (if she is eligible), she will not be able to show the new pictures and letters. She won’t even be able to explain why she didn’t know to provide this information before, as this would count as new evidence. Her lawyer will instead examine the materials Sarah did provide when she applied to sponsor Sami, and explain that a reasonable officer would have had other options besides rejecting Sarah and Sami’s application.
Reconsideration
Sometimes you can ask IRCC to reopen a file they have decided is closed. Your lawyer might advise you to do this if you have missed the deadline to apply for an appeal or judicial review. This is a last resort strategy and rarely works. Some visa offices might not even pay attention to your request.
Reconsideration is more likely to work if you think IRCC made a very small mistake, and would be willing to change their mind on a decision. For example:
John applies to sponsor his son, Chris. IRCC refuses the application in the decision letter they write “Because Chris is your nephew, you cannot sponsor him.” Saying someone’s son is their nephew is a silly mistake that IRCC should be willing to fix if asked to reconsider their decision.
There are no official forms for reconsideration requests, nor is there an official procedure for how to seek reconsideration. One simply must make the request in writing to IRCC via their webform or an appropriate Visa Offices email address. It is good to keep records of the materials you sent. A lawyer can help you assess when reconsideration will work, and how to best hold IRCC accountable in such cases.
Final Thoughts
Immigration law involves many procedures, and it can be easy to get them confused. When you get a negative decision, you should contact a lawyer as soon as possible so they can help you understand which option is best for you, and how soon you have to act.
This is legal information and not legal advice. If you require further information or advice, please call our Intake Line at 416-441-1764 ext. 1.