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Prepared by
Alicia Backman-Beharry
The content of this article is intended to be informational only. We
caution you against using or relying upon any information contained
in this article without first seeking legal advice regarding your
particular matter. All matters arising from the use of our website,
including this article, shall be governed by Alberta law and shall
be within the exclusive jurisdiction of the courts of Alberta(Updated as of January
2005)
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Which
“appeal” process applies in your case?
It is essential that you begin the proper appeal process in a timely
manner if your case is refused. The Immigration and Refugee
Protection Act states that certain types of applications can be
appealed to the Immigration Appeal Division (IAD). Other
applications can only go for judicial review to the Federal Court.
It is important to consult with a lawyer as soon as you receive a
refusal of your application because strict deadlines apply to each
process.
In an appeal to the IAD, the IAD rehears the evidence in your case
and can grant a positive result if there has been an error in law or
fact, if there has been a breach of natural justice, or if there are
sufficient humanitarian and compassionate reasons to grant the
appeal. It is important to note that the “humanitarian and
compassionate” analysis at the IAD is not the same as filing an
application for permanent residence on Humanitarian and
Compassionate grounds. (See Humanitarian and Compassionate
Applications)
Only lawyers can submit the Application for Leave and the Record
that is required to seek judicial review at Federal Court. If a
judge grants leave, your case will be scheduled for a hearing at the
Federal Court. In a judicial review, a successful decision from the
Federal Court would only result in your case being returned for
reconsideration by a different Visa Officer.
A Pre-Removal Risk Assessment (PRRA) is not a true “appeal.” A PRRA
evaluates whether someone in Canada would be subject to risk if they
were returned to their country.
Immigration Appeal Division
Certain types of unsuccessful applications may be appealed to the
IAD.
For example, Family Class sponsors have a right of appeal to the
Immigration Appeal Division if their relatives are refused admission
to Canada. The principal issues heard by the IAD in respect of
family class appeals are:
1. Medical refusals
2. Foreign Adoptions
3. Proof of Genuine Family Relationship
4. Inability to be self supporting and inadequate financial
sponsorship
The IAD is a tribunal which has its own set of rules. There are an
increasing number of disclosure and evidentiary rules that have been
implemented in the last 3 years which make it difficult if not
impossible for non-lawyers to represent persons at the Immigration
Appeal Division. Our immigration practitioners have appeared in the
IAD on a regular basis to deal with all of the above types of
appeals. Further, appearance at the IAD may be avoided if proper
disclosures are made in advance of the claim and both parties
consent to the case being allowed without the necessity of an
appearance.
Federal Court
The Federal Court is primarily involved in hearing judicial reviews
of the following types of applications:
1. Judicial review of visa officer decisions including:
a) Breach of the duty of fairness
b) Error of law
c) Review of medical officers decisions
2. Review of a Refugee decision
3. Review of Danger Certificates and other types of Immigration
Certificates
4. Review of Deportations
5. Review of inland applications
Federal Court applications are extremely specialized and immigration
consultants are not permitted to appear in court. Our immigration
practitioners have been involved in a number of precedent setting
cases which are reported in the Immigration Law Reporter and the
Federal Court Reports. There are tight time restrictions for
beginning your judicial review; depending on the type of application
it is likely that you have less than 15 days to contact a lawyer and
to file the proper documents in Court. If an application has been
refused then a judicial review must be considered immediately.
If you would like assistance with an appeal matter, please feel free
to contact us by email at: immlaw@caronpartners.com |
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