In an Immigration Appeal in Canada the provisions of the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (IRPR) pertain to sponsorship appeals, removal orders and residency obligations. Appeals lie before the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB), which is the administrative body which makes the decision on an application for immigration. An Appeal can lie against the order of an officer of the Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA) (Immigration officer).
Who can file Immigration Appeals in Canada?
In a case of an Immigration denial in Canada, there are 3 classes of persons who may have the right to file an Immigration Appeal to the IAD. These are:
Appeal by the Sponsor:
The Canadian Citizen/Permanent Resident Sponsor – In the event the Immigration Officer has refused the Sponsorship application of the Canadian Citizen/Permanent Resident Sponsor for immigration of their family member to Canada.
Appeal by Permanent Resident/ protected person(Refugee)/ Foreign National:
Appeal by Permanent Resident/ protected person(Refugee)/ Foreign National who is under a work or education visa – in an event such person is ordered to be removed from Canada; and/ or
Appeal by Permanent Residents:
Permanent Residents are required to be present physically in Canada for at least 730 days out of a total of 5 years’ time. An individual who fails to meet such criteria may lose PR status and thus their appeal lies under this class. They may be refused entry on re-entry or may face an order revoking PR status by the Immigration Officer.
Where Immigration Appeals in Canada may be taken up:
Immigration Appeals by a Permanent Resident:
arising due to a removal order of the Permanent Resident by the Immigration Officer at the port of entry on the ground of violation of permanent residency obligation.
Appeals by a Permanent Resident or an Applicant for Permanent Residency:
Residency obligation appeals against orders which are not removal orders.
Appeals by a Permanent Resident in the cases where a visa officer overseas denies the permanent residence status due to the Permanent Resident’s absence from Canada.
Appeals by a Sponsor:
the sponsor being a foreign national who holds a permanent resident visa, on a family class sponsorship for immigration of family member.
Appeal for discretionary relief
By the Permanent Resident or an Applicant for Permanent Residency to the Immigration Officer or the CBSA Officer for discretionary relief, given by such officer, upon confirmation of family and sponsor status.
Grounds of Appeal in an Immigration Appeal in Canada:
An Immigration Appeal in Canada can be made on the following grounds:
1.In the event the decision appealed is wrong in law/ fact or mixed law/fact,
2.Non-observance of Principle of natural Justice; and/or
3. Relief sought on the humanitarian and compassionate ground in all the circumstances of the case including the best interests of a child.
Where there is no Right to Appeal an Immigration Appeal in Canada:
Pursuant to Section 64 of Act, to give effect to its object, the right to Immigration Appeal has been curtailed in certain instances. One of the objectives, generally examined for this purpose is stipulated in Section 3 (1) (h),
S 3 (1) (h) “to protect the health and safety of Canadians and to maintain the security of Canadian society”.
The following persons do not have a right to an Immigration Appeal:
1.Persons who are found to be inadmissible on grounds of security (s. 34), or
2.Persons violating human or international rights (s. 35) or
3.Persons punished with serious criminality in Canada by a term of imprisonment of at least two years (s. 36 and s. 64(2)) or
4. Persons found guilty of organized criminality (s. 37).
Immigration Appeals in Canada which lie under the IRB’s various divisions can be a very complex process and where even a single mistake can cost the immigration. It is thus essential to consult an Immigration Attorney before you file an appeal.
The information on the procedure of the Appeals can be found at:
http://www.irb-cisr.gc.ca/Eng/BoaCom/references/procedures/Pages/InfoGuideIadSai.aspx
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