Judicial Review & Appeals

A visa or immigration application may be rejected by the authority citing specific reasons. The applicant can seek judicial review and submit an appeal in this regard. A Canadian immigration lawyer can help you take up the submission with the authority.

Role of the Immigration Appeal Division (IAD)

IAD is the authority for issuing resolutions for judicial reviews and appeals. They consider sponsorship appeals and residency appeals and issue verdicts based on the analysis.

The appeals that are resolved by the IAD are:

Sponsorship Appeals: 

Outland spousal appeals and sponsorship appeals are submitted to the IAD. The reason for rejection would be reviewed by the competent authority. A decision will be made after analyzing the reason for refusal. 

Residency Appeal: 

Residency requests or applications may be rejected if the IRCC believes that the individual is ineligible. Appeal on the subject issue is heard by IAD.

The procedure for submitting the review and appeal to IAD is as follows:

• Obtain “leave” after the documents have been reviewed.
• While seeking leave, the applicant can prove that a mistake or error was made or that the decision from the authority is assessed as unfair or unreasonable based on the scenario.
• The IAD may or may not accept leave. Once it has been accepted by the IAD, the applicant and the Canada immigration attorney can appear for further hearings to explain the reasons for submitting the review and appeal.

Procedure for Sponsorship Appeals in Canada

The process of a sponsorship appeal in Canada is as follows:

• The sponsorship appeal has to be submitted within 30 days from the date of rejection of the sponsorship application. The appeal will not be accepted by the authority post the subject period.
• It is the IAD’s discretion as to whether to accept or reject the appeal.
• Once the appeal is approved by the IAD, the case will be sent to CIC for further processing.
• In the event that the appeal is rejected by the IAD, the applicant has the right to approach the Federal Court to initiate an appeal.

Procedure for Residency Appeal in Canada

The procedure for a residency appeal in Canada is different from a sponsorship appeal. The procedure for a residency appeal is as follows:

• The applicant has sixty days to file a review and appeal.
• On receiving the appeal, an IAD member will hold a hearing.
• The appeal may be either allowed or dismissed. If the appeal is allowed, permanent status will be restored.
• If the appeal is dismissed, the resident status will be revoked. An order for the removal of the appellant from Canada will be issued.
   

Application for leave

An appeal on an immigration decision, submitted to the Federal Court, is usually called application for leave and judicial review. The first stage of the appealing process is called ‘leave.’ At this stage, the court considers the appeal by written arguments and evidence submitted by the lawyer who represents the appellant, the lawyers for the immigration department, the Department of Justice.

The lawyer of the appellant first files a notice to the court informing that the appellant is appealing the decision. The notice must be filed within 15 days of an inland decision or 60 days of an overseas decision. Then the lawyer files an application record, which includes arguments and evidence in favour of the appellant. It must be submitted within 30 days after filing the notice. The Department of Justice can file a written reply within 30 days, and the appellant’s lawyer can file a further written reply within ten days.

Often, the Department of Justice settles the case at this stage. Otherwise, the Court will grant or deny leave after reading arguments from both parties. This is done within four to six months after filing the notice.

If the leave is denied, the appellant will not be able to appeal further. If it is granted, a judicial review date will be scheduled by the court, which will fall within three months. During this period, the appellant may submit more arguments or evidence.

Judicial review

The judicial review hearing is taken place at the Federal Court. The appellant need not testify at the judicial review as all the evidence has already been submitted in the application record. But the appellant, his family and friends can observe the proceedings from the gallery. The judge will not make the decision there, but send a copy of the judgment in writing to the appellant’s lawyer. It may take a month or two. On rare occasions, the judge may announce his decision on the spot.

If the judge’s decision is against the interest of the appellant, he/she may approach the Federal Court of Appeal, provided the judge thinks the case is relevant to issues that may affect other people. The Department of Justice may also approach the Federal Court of Appeal if the decision is against them.

If the decision is in favor of the appellant, his/her case will be sent to another decision maker for reconsideration. The case may be refused again, which can again be appealed.