The Immigration Appeal Division (IAD) is part of the Immigration and Refugee Board of Canada, a tribunal independent from both CIC and CBSA.
Under Canadian immigration law, the IAD hears three main types of appeals: sponsorship appeals, removal order appeals, and residency obligation appeals.
An appeal of one of these types may be advisable when a visa officer made an error in fact or law, where there was a breach of procedural fairness (ex: the right to be heard), or where compelling humanitarian and compassionate circumstances exist, including best interests of a child. Given that appeals must be filed quickly following receipt of a refusal (ex: thirty days for a sponsorship appeal), a consultation with an experienced immigration lawyer should be arranged as soon as possible in order to understand your legal options.
Who Can Appeal? It is important to note that not all sponsorship applications are eligible for appeal before the IAD. For example, the right to appeal before the IAD constitutes a critical distinction between the two types of spousal sponsorship applications – inland vs. overseas. Under Canadian immigration law, the IAD only has jurisdiction to hear appeals by Canadians or permanent residents whose overseas spousal sponsorship applications were refused. Inland spousal sponsorships do not afford a right of appeal to the IAD. In addition, appeals before the IAD are not available when sponsored family members are found inadmissible to Canada on various criminality grounds or for misrepresentation (unless the sponsored family member is the spouse, common law partner or child of the sponsor). Common issues in sponsorship appeals include genuineness of a marriage, default on sponsorship undertakings, and financial ability to sponsor.
Appeal Process – IAD appeals are not for the impatient. Currently, the IAD takes, on average, 12-14 months to decide an appeal. Certain sponsorship cases may be selected for Alternative Dispute Resolution, which offers a faster and less formal means for resolving appeals. Cases with contentious issues and a low chance of resolution through mediation will not be suitable for ADR.
Outcomes – In considering the option to appeal a refusal to the IAD, it is critical to understand that a positive appeal decision will not guarantee approval of the sponsorship application. Rather, following a positive appeal, the application at issue will simply be forwarded to the applicable visa office for further processing. It is in the power of the visa office to refuse the application on other grounds despite the successful IAD appeal.
Who Can Appeal? Permanent residents, Convention refugees, protected persons and foreign nationals with a permanent resident visa are able to appeal their removal orders to the IAD, provided they have not been found inadmissible to Canada for serious or organized criminality, for security grounds, or because of violations of human or international rights. Failed refugee claimants are also not afforded the right of appeal.
Outcomes – There a several possible outcomes arising from an appeal of this nature. The first is that the appeal of the removal order is allowed and the appellant is able to remain in Canada. The second is that the IAD decides to stay the removal, meaning it is not enforced for a certain period of time. The stay allows the appellant to stay in Canada provided certain conditions imposed by the IAD are met. The stay can be cancelled at any time, or the conditions of the stay changed. Thirdly, the IAD can decide to dismiss the appeal, giving CBSA the authority to remove the appellant from Canada. In this third scenario the appellant can seek leave of the Federal Court of Canada for judicial review of the IAD’s decision. However, there is no guarantee that the Federal Court of Canada will grant leave and hear the matter.
Who Can Appeal? Permanent residents who have been found by a visa officer outside of Canada to not meet their residency obligations can appeal the decision to the IAD. If the appellant resides outside of Canada, the IAD can issue an order compelling the appellant to be physically present for the hearing.
Outcomes – At stake in the appeal is the right to remain a permanent resident. If the appeal is allowed, permanent resident status is maintained. If the appeal is dismissed, permanent resident status is lost and a removal order will be issued by the IAD if the appellant is in Canada.
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