We represent clients with appeals to the Immigration Appeal Division. The Immigration Appeal Division hears general appeals on issues such as failed sponsorship applications, removal orders and residency obligations.
The process for appeals to the Immigration Appeal Division differ depending on the type of decision being appealed.
Failed sponsorship applications may be made by the permanent resident or Canadian citizen who supplied the application to sponsor in support of the foreign national’s application for permanent residence. These appeals must be filed within 30 days of receipt of the refusal letter. For years the process included an Appeal Record for the case being produced by the Minister of Immigration, Refugees and Citizenship Canada no later than 120 days from the date requested. There has been a concerted effort to produce those records sooner and to engage in a number of early resolution mechanisms that are still being fully developed and implemented. Also, where it appears that the appeal can be resolved without a formal hearing, the Immigration Appeal Division may suggest that the appeal proceed to Alternative Dispute Resolution (ADR), which involves an informal meeting of the appellant, the Minister’s Counsel and the Member of the Immigration Appeal Division. Appellants counsel can also ask for ADR. If a decision is made at ADR, there is no need for a hearing. In all other circumstances, a hearing will be scheduled, following which the Immigration Appeal Division will decide to either allow or dismiss the appeal. If the appeal is allowed, processing of the application will be resumed by Immigration, Refugee and Citizenship Canada.
Again, there are some persons who cannot file an appeal of a refused sponsorship application. This includes sponsors of applications for permanent residence involving persons who are inadmissible to Canada on grounds of security, human or international rights violations, certain serious criminality, organized criminality or misrepresentation.
Persons who have received a removal order and who are permanent residents or permanent resident visa holders may appeal their removal to the Immigration Appeal Division. Convention Refugees or Protected Persons may also seek a removal order appeal. Appeals must be filed 30 days after receipt of the removal order. The Minister or the Immigration Division must then provide the record within 45 days of a request for the same from the Immigration Appeal Division. Again, the Immigration Appeal division may suggest that the appeal proceed by Alternative Dispute Resolution, although this is rare and generally not applicable for removal order appeals but early resolution mechanisms to exist and at Bellissimo Law Group PC we examine its case in detail to determine what is the best appellate remedy. Where a hearing is scheduled at the Immigration Appeal Division, a decision will be made to either allow or dismiss the appeal. If the appeal is allowed, then the removal order will be canceled and the person will be allowed to remain in Canada. If the appeal is stayed, then the removal is temporarily on hold and the person will be allowed to remain in Canada under certain specified conditions for a period of time. The appeal will then be reconsidered at the end of this period of time by the Immigration Appeal Division. At that time, the Division may decide to allow the appeal, continue the stay or dismiss the appeal. If the appeal is dismissed, then the person is removable from Canada at any time.
To maintain status, permanent residents are required to be physically present in Canada for at least 730 days over a 5-year period. Where a finding is made that the individual has not met these requirements, renewal of permanent residence may be refused and/or a departure order may be issued. If the decision is issued in Canada, then the permanent resident will have 30 days to file the appeal from the date of the departure order. If the decision is made by an overseas Canadian visa office (i.e. to issue a travel document), then the permanent resident has 60 days from the date of the decision to file the appeal.
Following the filing of the notice of appeal, an appeal record will be produced by the Minister within 120 days of the date requested. IAD members may suggest that the appeal be dealt with through alternative dispute resolution. Again, if alternative dispute resolution is successful, then a hearing will not be required. If it is not, then a hearing will be scheduled. There are two possible resolutions that can flow from the hearing of residency obligations appeal: 1) the appeal can be allowed, and permanent resident status will be maintained. If the appellant is not already in Canada when the appeal is allowed, then a travel document will be issued; 2) the appeal can be dismissed, and permanent resident status will be revoked. If the appellant is in Canada, a departure order that converts to a deportation order within thirty days will be issued.