Our immigration litigation capability is one of the things that sets Abramovich & Tchern apart from our competitors. From residence obligation appeals to stay of removal motions, we represent clients in the Federal Court as well as in front of the various divisions of the Immigration and Refugee Board of Canada. An application rejection or a deportation order isn’t necessarily the end of your immigration dreams. We’re here to help you navigate the Canadian court and tribunal systems.
Immigration Litigation Services
Our immigration lawyers successfully assist our immigration clients with immigration litigation matters such as:
- Challenging temporary and permanent visa rejections;
- Negative refugee determinations;
- Responding to procedural fairness letters;
- Deportations; and
- Dealing with inadmissibility-related issues.
Immigration litigation covers a wide range of areas, including:
- Judicial reviews of decisions by Immigration Refugees and Citizenship Canada (IRCC), Canada Border Services Agency (CBSA), and Employment and Social Development Canada (ESDC);
- Sponsorship appeals;
- Inadmissibility hearings;
- Detention reviews;
- Stays of removal motions;
- Mandamus applications;
- Permanent residence obligation appeals; and
- Appeals and judicial reviews with respect to denied refugee claims.
There are generally two pathways for challenging an immigration or refugee-related decision:
- Seeking leave to Judicial Review (JR) at the Federal Court of Canada; or
- Appealing the decision to a division of the Immigration and Refugee Board of Canada (such as the Immigration Appeal Division (IAD), or the Refugee Appeal Division (RPD)
In some cases, provincial courts have jurisdiction with respect to detention and security related matters.
Dealing with a deportation order? Temporary or permanent visa rejection? Out of status and out of options? Need to argue your case before the Immigration and Refugee Board of Canada, the Immigration Appeal Division, the Refugee Appeal Division, or the Federal Court? Immigration laws are complex, and the path to immigrating to Canada can be challenging.
Book a consultation with us today to discuss your options.
We take great pride in fighting for our clients’ rights to a fair and just decision. Our comprehensive litigation experience allows us to not only confidently challenge decisions, but also enables us to prepare initial immigration or refugee applications to a high standard. Having successfully litigated a wide range of matters, we have a close understanding of how effective applications need to be prepared. We see the big picture and are able to anticipate and deal with issues preemptively, thereby increasing the chances of initial approval.
In some cases, we know that the case or application will likely be denied and are in fact setting it up for an appeal or a judicial review, ensuring that the necessary evidence is admitted, or ensuring that a breach of procedural fairness is captured clearly.
When assisting clients with complex matters, we explain that while the application is addressed to an immigration officer, our submission package is preemptively prepared to a high standard which will allow us to effectively present your case at the Federal Court in the strongest possible fashion, should such a need arise.
While we take pride in the litigation part of our practice, we are committed to doing the best for our clients, and we recognize that litigation is not always the best option. In some instances, it makes sense to re-apply and address the issues that led to the denial. When practical or possible, it is also advisable to submit a reconsideration request. In other instances, it makes sense to commence litigation proceedings to ensure that a client’s procedural rights are preserved.
Contact us today if you have received a procedural fairness letter or your application has been denied so that we can help you determine the best pathway forward. We hold consultations in our Toronto office as well as, over the phone, and via video conferencing services such as Microsoft Teams and Zoom.
A judicial review is not an appeal, and in a review, the Federal Court cannot substitute its decision to replace the initial decision made by the original decision maker (i.e. the immigration officer or the Immigration and Refugee Board). Instead, on a judicial review, the Federal Court examines the process that led to the initial decision and determines if this process was fair and reasonable. Generally speaking, unless the fresh evidence addresses procedural fairness or jurisdiction related issues, the judicial review is limited to the evidentiary record that was before the decision maker.
If the Federal Court determines that the process was not reasonable, the Federal Court will send the case back to the decision maker to have a different individual consider the matter. The new decision maker will be bound by the Federal Court’s reasoning and analysis on review. In other words, if the Court addresses the key factors in a favourable fashion, the immigration or visa officer’s hands are bound by the analysis.
In exceptional circumstances, the court may issue specific instructions to the new decision maker with respect to how the matter is to be considered. This is referred to as a “directed verdict.” The threshold for the Federal Court issuing a directed verdict is very high.
The judicial review is a two-stage process consisting of: (1) the Leave Stage; and (2) the Judicial Review (if leave is granted).
- In the first stage, called the “Leave Stage”, the Federal Court reviews the documents regarding your case. There are four parts to the Leave Stage:
- (i) Filing a Notice of Application which sets out the grounds for the judicial review and the relief sought. It is important to be mindful of timelines with respect to commencing a judicial review application. Timelines vary depending on whether the decision was made (or is deemed to be made) inside or outside of Canada.
- (ii) Filing and serving the Applicant’s Record. This must be done within 30 days of the receipt of the full reasons or if the reasons were received prior to the issuance and filing of the notice of application, within 30 days of same.
- (iii) Filing and serving the Respondent’s Record. Within 30 days of receiving the Applicant’s Record, the Respondent must file a Respondent’s Record, including their arguments as to why leave should not be granted in the case.
- (iv) Reply by the Applicant – within 10 days of receiving the Respondent’s Record, the Applicant has the opportunity to file further arguments in the form of a Reply.
After the above documents have been properly served and filed, a judge of the Federal Court will consider the application for leave. Generally, the leave stage is done on paper and does not require Court appearances. It may take several months for the Court to make a decision.
In some cases, we are able to resolve the matter on consent with the Minister after the filing of the Application Record, which avoids a hearing. In other cases, we are able to negotiate settlements which include instructions to the next visa officer which greatly increases the chances of a future approval.
If the case is not settled and leave is granted, the Federal Court will set out all of the deadlines for filing the next set of required documents, including any additional affidavits and written arguments. The Federal Court will also set a date for oral arguments to be made by counsel in front of a judge. A hearing will take place with the decision being reserved in most cases, and issued a few weeks or months after the hearing.
In addition to judicial reviews we assist with matters before the Immigration Appeal Division and Refugee Appeal Division of the Immigration and Refugee Board of Canada.
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.
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.
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.
The Writ of Mandamus is a remedy that can be sought from the Federal Court when a government decision maker refuses to act or make a decision when it has the legal authority and duty to do so. Mandamus can be used in cases where immigration or citizenship applications have been significantly delayed without justification, or where authorities outright refuse to make a decision.
Delay in performing a statutory obligation may be deemed unreasonable if the following criteria are met:
- the delay in question has been longer than the nature of the process required, prima facie;
- the applicant and his counsel are not responsible for the delay; and
- the authority responsible for the delay has not provided satisfactory justification.
In most cases, mandamus applications are centered around what constitutes “unreasonable delay”. While such applications should not be used frivolously, a mandamus application can “wake up” IRCC with a decision being rendered prior to the hearing date being set.
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.
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.