Immigration Refugee Board (Appeal Division) – ADRs and the Immigration Lawyer’s Role
By Author: Admin | November 28, 2010
The ADR process at the Immigration Refugee Board (IAD) is open predominantly to refused spousal visas, and some residency obligation appeals. The judge and inquisitorial role is given to a representative of the Canada Border Service Agency. The other person present, the Dispute Resolution Officer (DRO) is supposed to encourage a settlement. Some cases may have an interpreter as well.
A settlement can mean three things: allowing the case without the need for a full hearing, withdrawing the case, or continuing onward to a full hearing. Since the DRO is a representative of the busiest biggest administrative court in Canada, the Immigration Refugee Board, the DRO would presumably promote either a positive decision from the CBSA, or an instruction from the client to withdraw the case. This may clash with the mandate of the CBSA which has to determine if it is in the public interest to agree to throw in the towel and allow the appeal without a hearing, or tell the client that they should withdraw.
The amount of procedural fairness accorded in an ADR meeting is quite low, in that there is some flexibility in the questioning and how the documents are produced. This is in keeping with the less formal nature of an ADR meeting in contrast to a full hearing at the Immigration Refugee Board which is more ‘court like’. This lack of formality often leads to over confident persons engaged in self-representation. This is not a good idea in some cases since third party preparation by a lawyer who is experienced in Canadian immigration law and the IRB allows many advantages. This includes an understanding of the immigration file that summarizes the refusal of the sponsorship visa. This can lead to a more useful and cogent idea about the evidence that can be put forward to assert that the relationship is genuine. Cogent evidence makes it harder for the CBSA officer to disagree with the genuineness of the marriage, and thus increases the chance of success at the IRB.
A failed ADR at the IRB could mean a longer waiting period for a full hearing (assuming the client wants to go to a full hearing) as an ADR case was in the IRB’s ADR queue, rather than in the ‘full hearing’ queue, from the outset. A failed ADR could mean that the case is withdrawn from the IRB and re-filed with presumably better evidence.
A successful ADR usually means the case can proceed back at the visa office, subject to further screening such as medical and police checks. There is an unfortunate tendency for some visa offices overseas, having received a notice of a successful ADR, to purposely delay the processing of the case (since a higher court in Canada has overturned a negative decision from the visa office). Again, a Canadian immigration attorney can make representations to the visa office to expedite processing of these usually spousal cases.
Unrepresented clients with cases of middling merit that are rejected at the ADR are sometimes brow-beaten to withdraw the case, or to hire an immigration lawyer in situations where they do not want to withdraw. Experienced Canadian immigration lawyers often are successful at winning the appeal at a full IRB hearing despite the unsuccessful ADR that preceded the full hearing. The price paid in these situations is that often such cases may have been successful at the ADR if an immigration lawyer was hired earlier, i.e. before the ADR.
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- PART II: Express Entry – The Canadian Skilled Trades Program
- Part I – Express Entry – The Federal Skilled Worker Program