Your application has been refused. Now What?
There are many different kinds of applications, all of which risk being refused. Often times, the refusal is wrong but it can be daunting to learn how to challenge a refusal. Appeal periods are typically very short. It is therefore critical to contact a lawyer immediately to preserve any right of appeal you may have. It is also essential to understand the proper appeal process to avoid wasted time, or worse, losing your appeal right altogether.
Refugee Appeal Division ("RAD")
The RAD is a relatively new Appeal Board that was launched on December 15, 2012, and is limited to reviewing refugee decisions made by the Refugee Protection Division ("RPD") of the Immigration and Refugee Board of Canada ("IRBC").
If you made a refugee claim that was refused, and you wish to appeal the decision, you must file a Notice of Appeal within 15 days of receiving the written reasons from the RPD. As the Applicant, you must also submit a "Record" within 30 days of receiving the negative written decision. The Record is very technical and requires the Applicant to present legal arguments about why they believe the RPD has made an error. The RAD's decision is usually based only on the written material; an oral hearing is seldom held.
Not everyone is eligible to appeal their case to the RAD. It is important to know whether you have this right.
It is also important to have a lawyer knowledgeable in refugee law assess your case to determine the chances of success at the RAD. If you are not likely to succeed at the RAD, we might be able to recommend another course of action that is more likely to succeed. Contact us to get our opinion.
Immigration Appeal Division ("IAD")
The IAD hears many different kinds of appeals, such as:
Removal Order appeals; and
Residency Obligation appeals.
Regardless of what type of decision is being appealed to the IAD, the Notice of Appeal must be sent to the IAD within 30 days of having received the underlying decision.
It is very important to have proper representation before the IAD. When we represent clients, we assist not only with preparing them (and any other witnesses) to speak at the hearing, but we also help put together the documentary evidence needed to prove your case. Strict rules exist about producing witnesses, documents, and service on the Minister.
Each appeal varies greatly and it is important to get advice from the start on how to best present your case to succeed at the IAD. A loss at the IAD can have devastating consequences. We are happy to assist you with this process from start to finish.
Federal Court ("FC")
The Federal Court is usually the final opportunity individuals have to challenge a negative decision. An application to the Federal Court is not an "appeal". It is called a Judicial Review. This simply means that the court "reviews" the underlying decision and decides whether, based on the evidence that was before the decision-maker, the decision was reasonable.
The time limits to make an FC application can be very short: 15 days for decisions made in Canada, and 60 days for decisions made outside of Canada. All of the material that follows must also be filed and served within very short times. The FC process is largely paper-based. There is no right to a hearing unless a Judge decides that the written materials demonstrate that a good case can be made. Drafting that legal argument is extremely challenging.
Success before the FC depends entirely on the competence of your legal representation. The analysis required to determine whether an application should be made is very technical. Our firm has excellent success before the FC. We will give you our honest assessment of the chances of success at the FC.
Contact one of our immigration lawyers for the advice you need: