Immigration Appeal Division
Has your immigration application to Canada been refused?
Have you been found to be inadmissible?
Bellissimo Immigration Law Group PC can help with appeals of negative decisions!
We represent hundreds of clients with appeals to the Immigration Appeal Division (IAD), and prior to the implementation of the new Immigration Appeal Division Rules, Bellissimo Immigration Law Group PC was invited to weigh-in on proposed changes to the IAD Rules. We were glad to see that much of the feedback provided have been reflected in the new IAD Rules which came into effect on 14 January 2023.
The Immigration Appeal Division, one of four divisions of the Immigration and Refugee Board, hears general appeals on issues such as failed sponsorship applications, removal orders and residency obligations.
The process for appeals to the IAD differ depending on the type of decision being appealed.
Failed sponsorship applications may be made by the permanent resident or Canadian citizen who supplied the application to sponsor in support of the foreign national’s application for permanent residence. If the application is unsuccessful, the sponsor can appeal the refusal to the IAD, and the Notice of Appeal must be filed to the IAD within 30 days of receipt of the refusal letter. For years the process included an Appeal Record for the case being produced by the Minister of Immigration, Refugees and Citizenship Canada no later than 120 days from the date requested. However, under the new IAD Rules, this time period has been shortened to 60 days. The Appellant is then required to produce documents in support of their appeal within 60 days after receiving the Appeal Record – a significant change from the previous rules when documents were to be provided to the IAD 20 days before the hearing. We understand this to be a positive change intended to assist IAD with triaging cases and where possible to attempt to resolve them through early resolution mechanisms, for instance, Alternative Dispute Resolution (ADR), which involves an informal meeting of the appellant, the Minister’s Counsel and the Member of the Immigration Appeal Division. Appellants counsel can also ask for ADR, although generally whether the appeal may be suitable for ADR or not is determined by an Early Resolution Officer of the IAD. If a positive decision is made at ADR, there is no need for a hearing. In all other circumstances, a hearing will be scheduled, which the IAD Member, who is the decision maker, will decide to either allow or dismiss the appeal. If the appeal is allowed, processing of the sponsorship/permanent residence application will be resumed by Immigration, Refugee and Citizenship Canada.
However, there are some individuals who cannot file an appeal of a refused sponsorship application. This includes sponsors of applications for permanent residence involving persons who are inadmissible to Canada on grounds of security, violation of human or international rights, certain serious criminality, organized criminality or misrepresentation.
Removal order appeals
Persons who have received a removal order and who are permanent residents or permanent resident visa holders may appeal their removal to the Immigration Appeal Division. Convention Refugees or Protected Persons may also seek a removal order appeal. Notice of Appeal must be filed to the IAD within 30 days after receipt of the removal order. The Minister or the Immigration Division must then provide the record within 30 days of a request for same from the Immigration Appeal Division. Again, the IAD may suggest that the appeal proceed by Alternative Dispute Resolution, although this is rare and generally not applicable for removal order appeals, but early resolution mechanisms do exist and at Bellissimo Immigration Law Group PC we examine each case in detail to determine what is the best appellate remedy. Where a hearing is scheduled at the IAD, a decision will be made to either allow or dismiss the appeal. If the appeal is allowed, then the removal order will be cancelled, and the person will be allowed to remain in Canada. If the removal order is stayed, then the removal is temporarily on hold and the person will be allowed to remain in Canada under certain specified conditions for a period of time, and the conditions of stay and its length will be determined by the IAD. The appeal will then be reconsidered at the end of this period of time by the IAD. At that time, the Division may decide to allow the appeal, continue the stay or dismiss the appeal. If the appeal is dismissed, then the person is removable from Canada at any time.
Residency obligation appeals
To maintain their permanent resident status in Canada, permanent residents are required to be physically present in Canada for at least 730 days during any given 5-year period. Where a finding is made that the individual has not met these requirements, their permanent resident card application or an application for a permanent resident travel document or an application to enter Canada as a permanent resident may be refused and/or a departure order may be issued. If the decision is issued in Canada, then the permanent resident will have 30 days to file the appeal to the IAD from the date of the decision/departure order issuance. If the decision is made by an overseas Canadian visa office (i.e. in cases where permanent resident applied for a permanent resident travel document to return to Canada), then the permanent resident has 60 days from the date of the decision to file the appeal.
Following the filing of the notice of appeal, an appeal record will be produced by the Minister within 60 days of the date requested. IAD member may suggest that the appeal be dealt with through alternative dispute resolution. Again, if alternative dispute resolution is successful, then a hearing will not be required. If it is not, then a hearing will be scheduled. There are two possible resolutions that can flow from the hearing of residency obligations appeal: 1) the appeal can be allowed, and permanent resident status will be maintained. If the appellant is not already in Canada when the appeal is allowed, then a travel document will be issued; 2) the appeal can be dismissed, and permanent resident status will be revoked. If the appellant is in Canada, a departure order that converts to a deportation order within thirty days will be issued.
How can Bellissimo Immigration Law Group PC help?
We have significant experience representing clients on appeals to the Immigration Appeal Division for decades. We can assist at all stages, including with preparation of the notice of appeal, the gathering and filing of required evidence, the preparation of submissions, preparation for witness testimony and in providing representation at the hearing itself. Our firm prides itself on the success we have achieved on appeals due to our thorough preparation of appeal files and our in-depth knowledge of the legislation and case law. Please contact Bellissimo Immigration Law Group PC if you require assistance at the Immigration Appeal Division.
Papers written by Mario D. Bellissimo on the Immigration Appeal Division
Related Frequently Asked Question (FAQ):
Do I need to Appeal to IAD or Waive my Right of Appeal?
Q. I have landed in Canada with my family as permanent residents in May 1996, but I had to go back to India with my family in August 1996. In August 2002, I intended to return to Canada and wrote to the Canadian High Commission in India to clarify my status and issue me an Authorization to return. Since I had not received any response and telephonic discussion was not being entertained, I made a new application in December 2002, just for not losing my PR status. Now I received a response to my application for PR made in Dec. 2002 saying that we are still permanent residents who did not comply with the residency obligation and must sign a Consent to Decision of Residence and Waiver of Appeal Rights, to continue my application. Signing this document removes the PR status also waives the right of appeal of the removal of this status. They continue to say that if we believe we are still PRs, then we must apply for a Permanent Resident Travel Document. They gave us 30 days to provide a response. What is your advise in this case, please?
A. This is a frequent question that we receive. When you left Canada, under the old Act and Regulations, you still had to comply with the residency obligation, meaning at that time that you could not be out of Canada for more than 6 months within any 12-month period. Obviously, you did not comply with this requirement. When you applied for a RRP (Returning Resident Permit) in August 2002, the new legislation was in place as of June 2002, and this type of application was no longer available- hence no response from the visa office. At this point in time, as per the visa office’s letter, you must decide whether to apply for a travel document, which will be refused and then challenge the decision in court (IAD) or, just sign the waiver and continue with your new application. Without knowing all the details of your case, I believe it will be very difficult to demonstrate in court that you complied with the residency obligations and win your case. A permanent resident application may be the better option but consult with an immigration lawyer before any decisions.
Permanent Resident Application Refused
Q. This is regarding my brother-in-law’s application for permanent residency. He applied by himself and he was refused recently. He married my sister last month and we decided to apply again, but would need some guidance as we do not want him to be refused again. Both my sister and her husband have post-graduate degrees with considerable experience in their area of finance & business administration. I was wondering why he was refused?
A. It is very difficult to say definitively without reviewing the refusal letter. There may be a number of reasons for the refusal: lack of proper documentation, the degree granting schools are not recognized by the local government as an institution that can issue diplomas/ degrees, insufficient work experience, lack of language ability, etc. One other question that I would have is whether your brother-in-law has advised Immigration Canada about his change of status, after marrying your sister. You might want to consult a specialist regarding the possibility of challenging the refusal at the Federal Court of Canada if warranted. As for a new application, applicants must be very careful as the recent changes allow for only 38 eligible occupations for immigration to Canada without a job offer. So consult before applying to avoid another refusal. Also, a lawyer will review other immigration programs that might apply to your brother in law’s case. Good luck!
Important Immigration Court Decisions
- Canada v. Chen (2014 FC 262)
Key paragraphs: 20, 21, 22
- Aujla v. Canada (2014 FC 134)
Key paragraph: 15
- Jiang v. Canada (2013 FC 413)
Key paragraphs:11, 13, 14, 20, 23, 24
- Habtenkiel v. Canada (2013 FC 397)
Key paragraphs: 25, 30
- Canada v. Mora (2013 FC 332)
Key paragraphs: 33, 39
- Gill v. Canada (2012 FC 1522)
Key paragraphs: 25, 32, 33
- Patel v. Canada (2012 FC 1389)
Key paragraph: 35
- Russom v. Canada (2012 FC 1311)
Key paragraphs: 24, 25, 26
- Abebe v. Canada (2011 FC 341)
Key paragraphs: 37, 38, 39
- Ashraf v. Canada (2011 FC 1383)
Key paragraphs: 57, 62, 63, 67, 68
- ABIOYE V. CANADA (MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS) (2014 FC 348)
KEY PARAGRAPHS: 4, 9, 10, 11, 12
- VILLAGRANA V. CANADA (2013 FC 415)
KEY PARAGRAPHS: 10, 11, 12, 13
- MENDEZ VALDEZ V. CANADA (2013 FC 697, 2013 CF 697)
KEY PARAGRAPHS: 14, 16, 25
- KUSMIEREK V. CANADA (2012 FC 1333)
KEY PARAGRAPHS: 4, 5, 8
- ALVAREZ MJIA V. CANADA (2012 FC 1256)
KEY PARAGRAPHS: 3, 4, 5, 6
- THOMAS V. CANADA (2012 FC 458)
KEY PARAGRAPHS: 24, 28, 29, 30 31
- SIAVOOSH V. CANADA (2012 FC 149)
KEY PARAGRAPHS: 4, 5
- ES-SAYYID V CANADA (2012 FCA 59)
KEY PARAGRAPHS: 45, 62, 63, 69
- CANADA V AZIZ (2011 FCA 18)
KEY PARAGRAPHS: 7, 8, 9