In addition to judicial reviews we assist with matters before the Immigration Appeal Division (IAD) and Refugee Appeal Division of the Immigration and Refugee Board of Canada.
The Immigration Appeal Division (IAD)
The IAD hears appeals of negative visa decisions and removal orders in a limited subset of cases such as:
- Permanent Residency obligation appeals by permanent residents;
- Appeals with respect to refused sponsorship applications submitted overseas;
- Appeals of a removal order by permanent residents, foreign nationals who hold permanent resident visas, and protected persons, including Convention Refugees (unless a person is inadmissible on grounds of serious criminality outside Canada, security, violation of human or international rights, or organized criminality; or if they are inadmissible for serious criminality inside Canada and they received a sentence of 6 months or more);
- Appeals by the Minister’s against the Immigration Division admissibility decisions .
In many cases, the Immigration Appeal Division has equitable jurisdiction, which means it can allow an appeal where there are sufficient humanitarian and compassionate grounds to warrant special relief in light of all the circumstances of the case, taking into account the best interests of a child directly affected by the decision.
Alternative Dispute Resolution through the Immigration Appeal Division
The Immigration Appeal Division also has a robust alternative dispute resolution program which offers a great opportunity to resolve the appeal without a formal hearing. If a file is proposed for the alternative dispute resolution process, the parties will attend an alternative dispute resolution conference with a Dispute Resolution Officer who will act as a mediator between the parties.
Any agreement reached at the alternative dispute resolution must be approved by a member of the IAD, which in most cases, is a formality. If a case cannot be settled via the alternative dispute resolution process, a hearing is scheduled. The alternative dispute resolution process is confidential and without prejudice, meaning that the evidence given will not be disclosed or used at the actual hearing.
Permanent Residence Obligation Appeals
In order to renew a permanent residence card, permanent residents have to be physically present in Canada for at least 730 days out of every five years or meet some of the exemptions to the requirements that are set out in section 28 of the IRPA. For example time spent outside Canada while accompanying a Canadian citizen spouse or working for a Canadian business will count as physical presence.
If a permanent resident is outside Canada and a visa officer determines that they have not meet their residency obligations, the permanent resident may appeal the decision to the Immigration Appeal Division.
The appeal is commenced by filing a Notice of Appeal together with the officer’s written decision, to the IAD closest to where the appellant last resided in Canada, within 60 days after receiving the written decision.
What Will The IAD Consider In Permanent Residency Obligation Appeals?
It is important to note that the appellant is able to not only challenge the decision but to rely on humanitarian and compassionate factors to overcome the non-compliance.
The following non-exhaustive list may be considered by the IAD.
- The nature and degree of non-compliance with the residency obligation;
- The reasons for the appellant’s failure to comply with their residency obligations, and their attempts to return to Canada since leaving Canada;
- The initial and continuing degree of establishment in Canada;
- The continuing connections the appellant has in Canada;
- The appellant’s establishment in their country of residence and citizenship relative to their establishment in Canada;
- The best interest of any children directly affected by the outcome of this appeal; and
- A consideration of the extent of the hardship and any dislocation family members in Canada would incur were the appellant found not to be a permanent resident of Canada by reasons of the failure of their residency obligations.
In our experience appeals can often be avoided with proper planning and submissions at the renewal stage, and we have been brought in to supplement applications submitted without the help of counsel.
If your permanent residence card renewal application has been rejected or you have received a procedural fairness letter, contact us today to set up a consultation to discuss your options.
The Refugee Appeal Division
With some exceptions, the Refugee Appeal Division has jurisdiction to hear appeals from the RPD’s decisions in refugee cases. The Refugee Appeal Division has the authority to confirm a decision of the RPD, to substitute a determination that, in its opinion, should have been made, or to refer the matter back to the RPD for a redetermination, with directions that it considers appropriate.
Most Refugee Appeal Division appeals are decided by a single member through a paper review. In some cases for example, when new evidence is accepted by the Refugee Appeal Division, it has the jurisdiction to hold an oral hearing.
Our immigration lawyers have prepared and successfully prosecuted numerous RAD appeals.