About Immigration Appeals

An immigration appeal is a process to complain about a visa officer or an immigration officer’s decision. The complaint usually relates to the refusal of a visa or permit. In less common cases, the appeal is filed to disagree with a removal order. The immigration appeal commences by filing the required document at the Immigration Refugee Board (Appeal Division) or the Federal Court of Canada.

The parties involved include the officer’s lawyer who is from the department of justice, as well as the judge. There are ancillary persons involved who may serve as gatekeepers for justice such as a federal court registry officer.

Who Can Appeal: Temporary Visa or Temporary Permit Seekers

People typically outside of Canada are seeking their first study permit, or work permit or visitor visa.  A visa officer may doubt that the person is a genuine student, worker or visitor to Canada.  This may lead to a refusal by the visa officer.  Such refusals can be appealed (or more precisely, judicially reviewed) at the Federal Court.

Such persons in the above temporary permit/economic categories do not get the benefit of a full appeal where new evidence can be introduced at the Federal Court.  In some cases, it is appropriate to re-file an application with stronger evidence and/or professional representation which is what we do at Chaudhary Law Office.

Who Can Appeal: Permanent Resident Candidates and Permanent Residents

Permanent resident Candidates who have been refused can seek to appeal (or more precisely, seek judicial review) of their refusal at the Federal Court of Canada.  By contrast, Permanent residents can seek the removal of their Permanent resident status at the Immigration Refugee Board (Appeal Division), with some exceptions.  In those exceptions, those Permanent resident candidates would have to seek judicial review at the Federal Court of Canada. Watch our video on the difference between an appeal and judicial review here:

Difference Between Appeals and Judicial Reviews

 

 

Process for Immigration Appeals: Economic Class: Temporary Permit, Work permitStudy PermitVisitor Visa and Permanent resident Applicants

The above categories of cases when rejected or delayed must be taken to the Federal Court of Canada for relief. The steps include:

  • filing an application for leave to seek judicial review,
  • obtaining the reasons for the rejection,
  • composing an affidavit and
  • accompanying memorandum of argument in the form of an application record

Another key step is the receipt of an opposing argument from the visa officer’s lawyer, sometimes accompanied by an affidavit of the officer who refused the case.  It is important to have an address in Canada where the opposing argument and visa officer statement can be received.

A further step is the filing of a reply which includes a response to the opposing lawyer’s arguments. After the above documents have been filed a judge reviews those documents and decides if a hearing is required.

A hearing is usually set within 90 days of the judge ordering the hearing. The hearing takes place in Canada and requires a Canadian lawyer to represent the refused visa applicant. The visa officer’s lawyer is also present to defend the refusing officer’s decision.  The entire process may take between six and 10 months depending on the complexity of the case and the judges’ schedules.

Process for Immigration Appeals: Refused Refugee Appeal, and Refused IAD Applicants/Appellants

If the Immigration Refugee Board (Appeal Division) makes a decision against a person who sought to sponsor a relative, or against a person who was issued a removal order, or against a person who sought refugee status, then the Federal Court would be the venue to challenge such decisions.  Similarly, a rejected RAD decision would have a remedy to appeal at the Federal Court.  The procedure at the Federal Court is the same as described above.

Process for Immigration Appeals: Refused Parent or Spouse or Common-Law Partner or Travel Document Applicants

The above cases are refused by a visa officer outside of Canada and when refused, can be taken to the Immigration Refugee Board (Appeal Division). The steps include:

  • filing a notice of appeal,
  • awaiting the Minister’s Record (which has the reasons for refusal),
  • analyzing the reasons for refusal, and
  • then collecting documents to present to the I.A.D.

The type of documents to present include those that contradict the officer notes.  In some cases, documents relating to the health of a parent, or the business activities of a permanent resident outside of Canada may be helpful.  Similarly, with respect to a refused parent sponsorship, documents proving Humanitarian & Compassionate factors are important. Such H&C documents should address the unique situation of the sponsor and or the parent or refused travel document holder.  The unique situation may be related to health or family circumstances.

Client preparation is imperative as the client will be testifying before a Member (who acts like a judge). The failure to have proper client preparation can seriously jeopardize the chances of success of an appeal.

Closing submissions are extremely helpful to the Member and are presented by the client’s lawyer.  The goal of the closing submissions is to emphasize the positive aspects of the evidence and tie them to case precedents.  Further contextualizing and/or mitigating any negative answers can be another purpose for closing submissions.  The processing time for such appeals may be as little as five months (if there is an alternative dispute resolution) to as long as one and one-half years, depending on the caseload at the Immigration Refugee Board (Appeal Division).

Process for Immigration Appeals: Removal Order Applicants (Appellants)

A removal order is made by the Immigration Division or the Immigration Refugee Board, or by an immigration officer.   Immigration Division Removal orders against permanent residents may be appealed at the Immigration Refugee Board (Appeal Division), unless there is ‘serious criminality’, or a term of imprisonment of over six months or certain other inadmissibility. See the Immigration Refugee Board (Appeal Division)  procedures above for what steps are taken as well as the time frame.

Process for Immigration Appeals: Misrepresentation or Criminality against a Permanent resident of Canada Applicants (Appellants)

A removal order by the Immigration Division can be due to a finding of misrepresentation by a permanent resident of Canada. Similarly, the Immigration Division may make an order against a permanent resident who has committed a crime.  In both situations, recourse can be had to the Immigration Refugee Board (Appeal Division).  the I.A.D. can stay (pause) or a removal order, or the I.A.D. can allow the appeal which would in turn allow the person to retain their permanent resident status.  See the Immigration Refugee Board (Appeal Division)  procedures above for what steps are taken as well as the time frame.

Process for Immigration Appeals: Refugee and Refugee Appeal Division Appellants

Refused refugees (excluding those who were deemed to have no credible basis for their claim) can seek an appeal of their refused refugee case at the Refugee Appeal Division of the Immigration Refugee Board.  The RAD assesses whether there were errors in the analysis of the lower Member who made the negative decision at the Refugee Protection Division.  The RAD process involves affidavit evidence and a memorandum and in this regard resembles the Federal Court. Similarly, new evidence is often not allowed at the RAD, and a hearing is not common The RAD can set aside the RPD decision and order that a new RPD Member decide the matter, or can give a different decision from the RPD, or can agree with the RPD’s rejection of the refugee claim.  The processing time for such RAD cases may be as little as 90 days from filing arguments to 12 months.

Examples of Immigration Appeals

One of our clients was refused a self-employed permanent resident application for permanent residence.  I represented this case at the Federal Court, arguing that the officer misinterpreted the test for work experience under the self-employed category.  Legal research was the foundation of this case, specifical elaboration on the types of work experience that can be considered under the self-employed category.  The court agreed that there was a misinterpretation of the law, and the refusal was erased, leading to the application being reopened, to be re-assessed by another officer.  This is more precisely a judicial review application where no new evidence is given to the Federal Court. Rather, new evidence can be submitted only after the Federal Court grants the case and returns the file for reassessment by a different visa officer.

Another of our clients tried to sponsor their spouse.  The visa officer overseas doubted the genuineness of the relationship.  I successfully appealed the decision at the Immigration Refugee Board (Appeal Division) successfully after discussing with the client’s appropriate documentation to give to the Immigration Refugee Board (Appeal Division).  This also required extensive preparation of the client before the hearing to allow them to testify in a compelling way.   Further effective closing submissions were useful to the Member in framing the successful decision.

Process for Immigration Appeals: Refused Child/ Refused Refugee/  Refused Pre Removal Risk Assessment/ Refused IAD Appellents

Children who had sought permanent resident status on Humanitarian & Compassionate grounds may seek redress at the Federal Court.  Similarly, failed refugees who have filed a Pre Removal Risk Assessment that is denied may seek to overturn that denial at the Federal Court.  Further, those persons who had a case at the Immigration Refugee Board (Appeal Division) that was refused by the I.A.D. may also seek to overturn their I.A.D. refusal at the Federal Court.  For Federal Court procedures, please see “Who Can Appeal: Temporary Visa or Temporary Permit Seekers”, above.

Chaudhary Law Office has more than 20 years of experience and expertise in overturning refused or delayed cases such as those above. Learn more about our exclusive process for maximizing your chances of success at appeal by contacting us.

The Immigration Webinar You Can't Miss on March 21 2024 at 1800 (i.e. 6 pm ET)

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