With the coming into force of the new immigration
legislation in 2002, we have noted an increase in the number of
bad decisions by Visa Officers. Often, these bad decisions have
been overturned after we ask for reconsideration or appeals consented
to by government lawyers. At this point, we fear that there are
hundreds, if not thousands, of applicants whose applications have
been refused and these applicants may not know where to turn to.
We are routinely retained by applicants worldwide to appeal their
refusals. Not all refusals are 'appealable'. Should your application
be refused by a Visa Officer at a Canadian embassy or consulate,
we will assess your chances of success on appeal for free and provide
a legal opinion on your options, if any.
There are two main types of appeals. One type is
appeals by permanent resident/citizens of Canada and the other is
appeals by non-residents. The second type of appeal is known as
Judicial review.
An appeal should be based on an error in law. Such an appeal must
be submitted within 60 days of the receipt of the
refusal letter. The case should be examined thoroughly for adequate
grounds prior to submission of an appeal.
Appeals of Visa Officers' decisions are filed and heard in the Federal
Court of Canada. Only lawyers can represent you and appear in
Federal Courts.
The Judicial Review process is consistent with the obligation to ensure
that decisions made under the Immigration and Refugee Protection
Act comply with the Charter of Rights and Freedoms and
the principles of fairness and non-discrimination. The judicial review
process gives a person who is affected by such a decision the means
to have the reasonableness of that decision reviewed by the Federal
Court.
A Judicial Review of a decision is not an appeal on the merits
of the case. The Court cannot substitute its decision for that of
the decision-maker. Rather, the Court is examining the process that
led to the decision and determining if this process was fair and
reasonable. If the Court determines that it was not, the Court may
only 'quash' the decision in question and order a redetermination.
Judges cannot order which decision is to be made, although they
may issue “directions” as to how the redetermination
is to be carried out.
APPEALS BY RESIDENTS AND CITIZENS
Canada’s Immigration and Refugee Protection Act allows
specific groups of people to appeal to the Immigration Appeal Division
(IAD) in order to:
» ensure that persons ordered removed from Canada after an admissibility
hearing have had the benefit of a full hearing on the allegations against them. The Act
recognizes an additional commitment to permanent residents and protected persons by allowing
them to appeal removal orders to the IAD, not only on the basis of legal and factual questions
relating to the allegations at the admissibility hearing, but also on the basis that special consideration may be warranted.
» ensure that the reunion in Canada of Canadians and permanent residents
with their close relatives from abroad is facilitated by providing a review, by way
of appeal, of refusals of sponsored applications for permanent residence from members of the
family class.
» ensure that the rights of permanent residents
are given due consideration by allowing an oral appeal to the IAD
for loss of residency status determinations made both in and outside
of Canada.
The right of appeal to IAD is consistent with the objectives of the
Immigration and Refugee Protection Act (IRPA) in that it
helps:
- see that families are re-united in Canada; and
- protect the health and safety of Canadians and maintain the
security of Canadian society.
Humanitarian and compassionate considerations
The IAD has an equitable jurisdiction, which allows it to consider
factors that may warrant an appeal being allowed despite the fact
that the decision being appealed is valid in law. The Immigration
and Refugee Protection Act (IRPA) sets out the test to be applied
by the IAD in order to allow a case for reasons of equity. Under the
IRPA the test of equity to be applied by the IAD has been consolidated
into one test for all types of appeals to the IAD by a party other
than the the Immigration Department itself [A67(1)(c)].
The chart below outlines the IAD APPEAL PROCESS
The chart below outlines the FEDERAL COURT PROCESS
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