Types of Appeals
The Immigration Appeal Division (IAD) has received over 60,000 appeals since its inception in 1989 when only less than 1,000 appeals were filed. By the turn of the century, the situation at the IAD had changed dramatically. Backlogs at the IAD are nothing new. In fact, it has been the rule rather than the exception over the last several years. Yet, a multi-stakeholder effort to improve the way the IAD does business has been under way for many years. IAD deals with family class appeals (mostly spousal sponsorships), removal order appeals (mostly due to criminal and medical inadmissibility), and residency appeals. In most IAD cases the APPEAL DEADLINE is 30 days from receipt of the decision and in other cases, like residency cases, 60 days.
Rapid Information Gathering, Triage and Resolution
What has changed at the IAD is Early Information-Gathering, Early Resolution and Hearing-Readiness, Hearing and Post-Hearing Matters. Acting on your behalf, our key responsibility is to attain relevant documents on a high pressure deadline and undergo the resolution process on an equally pressing timeline.
Early Information-Gathering, begins with the refusal of a sponsorship application, a Citizenship and Immigration Canada (CIC) decision with regard to a residency obligation or the issuance of a removal order. It extends beyond receipt of the Notice of Appeal and disclosure. This stage is characterized by the efforts of the IAD and the parties to seek out and make available all relevant information that may contribute to triage and to Early Resolution, which is the second stage of the appeal case management process. Stage II, or Early Resolution, involves any settlement or partial resolution activities identified and performed by a team of triage and early resolution experts. Stage III, or Hearing Readiness, Hearing and Post-Hearing Matters, requires an engaged team of public servants to ensure the readiness of all appeals going to an oral hearing. The hearing itself should be a more informal hearing presided over by a proactive Member, with decisions received by the parties in an expeditious manner.
The emphasis is placed upon prompt action with respect to the information gathering and case resolution. Critical documents are to be submitted, followed by an early assessment of the appeal by public servants with “specialized knowledge of IAD legislation” and jurisprudence. Of course, this stage of the process requires that IRB Members and IAD public servants effectively comply and assume great responsibility in advancing appeals. The early disclosure of information seeks to hasten the process by demanding earlier submission of information, which will afford greater analysis of the appeal, and an opportunity for early resolution, in turn.
Hearings, Hearing readiness and Post hearing issues
Often appellants may not proceed to the hearing due to unprepared files. At BLG we are dedicated to an advance file review, so that all necessary documents are attainable prior to the hearing, as well as a set schedule for the appeal to ensure its completion.
At hearings now we can expect Members to be proactive’, as they would direct and focus the issues pertinent to the different parties and address tensions that arise between those involved. A crucial function of a Member, particularly throughout the hearing, is to satisfy public interest and to encourage accountability during the appeal process.
Each party must prepare accordingly for the hearing and once scheduled based on the IAD’s resources, should go forth as planned. Returning again to the principle of early action, we aim to prepare you, your witnesses and the evidence in an effective, cost efficient and persuasive manner.
10 Practical Pre-Hearing Tips at the Immigration Appeal Division
In view of the goal at BLG to keep more appeals out of the hearing room, we focused our ten tips on actions to be taken as soon as you call us and retain us, to help with your APPEAL before we get to the hearing room.
1. If available, obtain a copy of the permanent residency application from either the previous representative or you, the appellant.
2. Immediately make an access request for the appellant’s file both a CAIPS request and a supporting document request including file jackets to compare and contrast with the file provided by the former representative.
3. Review file jacket and CAIPS notes to ensure there are no procedural breaches or documents allegedly sent to the appellant or the applicant that do not appear in the file.
4. Compare and contrast the Record with previous requests to confirm the file has not been vetted by CIC or CBSA to your disadvantage.
5. Create a time line for the file and cross-reference with dates on supporting documents.
6. Rely not on previous forms (i.e. dates on those forms) but on the actual supporting documents (photocopies must be cross-referenced with originals).
7. Create a list of tombstone data that is not in dispute by cross-referencing with the Record.
8. Identify issues within the instant appeal and any other admissibility issues. The goal is to canvass all issues to prevent multiple appeals and refused cases.
9. Consult fact similar case law at both the IAD level as well as the Federal Court and beyond and understand themes and any interpretative divisions at various judicial levels.
10. Consult the Act, the Regulations, the Division Rules and the Manuals and not assume your issue has been decided before. Fact specific nuances and innovative advocacy is what expands or, in some cases, focuses the law and we have been privileged to be involved in a number of decisions where we have been able to do so on behalf of our clients.