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A refusal or negative immigration decision does not always mean that the matter is over. Depending on the type of decision and the circumstances, there may be a right of appeal to the Immigration and Refugee Board or an opportunity to challenge the decision through an application for leave and judicial review before the Federal Court of Canada.
Immigration Appeals and Judicial Review involve different legal processes. Some decisions carry a statutory right of appeal, while others may only be challenged through judicial review. Determining the appropriate remedy requires careful examination of the decision, the reasons provided, the application or hearing record, and the applicable deadlines.
At Nadeem Law Office, we assist clients with immigration appeals and Federal Court judicial review matters, including sponsorship refusals, residency obligation decisions, removal orders, refugee decisions, temporary residence refusals, permanent residence refusals, humanitarian and compassionate decisions, and other immigration matters.
With our head office in Mississauga and branch offices in Cambridge and London, Ontario, we represent clients in immigration appeal and judicial review proceedings.
An immigration appeal is a legal process through which an eligible person asks an appellate tribunal to review an immigration or refugee decision.
The Immigration and Refugee Board of Canada (IRB) includes divisions that hear different types of appeals.
The two divisions particularly relevant to immigration and refugee appeals are:
The Immigration Appeal Division (IAD); and
The Refugee Appeal Division (RAD).
A right of appeal exists only where Canadian immigration legislation provides one.
This means that not every visa, permit, permanent residence, or immigration refusal can be appealed to the IAD or RAD.
The Immigration Appeal Division hears specified immigration appeals under the Immigration and Refugee Protection Act.
Depending on the circumstances and statutory restrictions, IAD matters can include:
Family sponsorship appeals;
Permanent resident residency obligation appeals;
Removal order appeals; and
Certain other matters for which IRPA provides a right of appeal.
The IAD process differs significantly from Federal Court judicial review. In an appropriate appeal, the IAD may consider issues concerning the correctness of the decision and, in certain types of cases, humanitarian and compassionate considerations.
A person who filed an application to sponsor a foreign national as a member of the Family Class may have a right to appeal a refusal to the Immigration Appeal Division.
Sponsorship appeals commonly involve applications concerning:
Spouses;
Common-law or conjugal partners;
Parents;
Grandparents;
Dependent children; and
Other relatives who qualify under the Family Class.
The issues in a sponsorship appeal depend on the reason for refusal.
For example, a spousal sponsorship appeal may involve whether the relationship is genuine or was entered into primarily for the purpose of acquiring immigration status. Other sponsorship appeals may involve eligibility, family relationships, admissibility, or other immigration requirements.
Not every family sponsorship refusal carries an IAD appeal right. The applicable immigration category and any statutory restrictions must be reviewed before determining the appropriate remedy.
Appeal deadlines are important.
Under the current Immigration Appeal Division Rules, a person appealing a sponsorship refusal generally must provide the IAD with a Notice of Appeal and the refusal decision within 30 days after receiving the written reasons for the refusal.
Missing an appeal deadline can significantly affect the case.
A sponsorship refusal should therefore be reviewed promptly to determine whether there is a right of appeal and when the applicable deadline expires.
Canadian permanent residents generally must comply with the permanent resident residency obligation.
A negative residency determination can arise, for example, when a permanent resident outside Canada applies for a Permanent Resident Travel Document and an officer determines that the person has not met the residency obligation.
A permanent resident may have a right to appeal a negative residency determination to the Immigration Appeal Division.
The appeal may address whether the residency obligation was actually satisfied, including whether qualifying time outside Canada should have been counted.
Depending on the circumstances, the IAD may also consider humanitarian and compassionate considerations.
A permanent resident appealing an overseas residency obligation determination generally has 60 days after receiving the written decision to file the appeal with the Immigration Appeal Division.
Because a final negative residency determination can result in the loss of permanent resident status, the decision and travel history should be reviewed carefully and promptly.
Relevant issues can include physical presence in Canada, time abroad accompanying a Canadian citizen spouse or common-law partner, qualifying employment outside Canada, and humanitarian and compassionate circumstances.
Certain permanent residents, protected persons, and other persons specified under IRPA may have a right to appeal a removal order to the Immigration Appeal Division.
A removal order appeal can involve questions about whether the removal order is legally valid.
Where the legislation permits, the IAD may also consider humanitarian and compassionate circumstances in determining whether relief should be granted.
Relevant factors can vary considerably depending on the case and may include establishment in Canada, family circumstances, the seriousness of the conduct giving rise to removal, rehabilitation, hardship, and the best interests of children directly affected.
A right of appeal to the Immigration Appeal Division is not unlimited.
IRPA contains restrictions that can remove an IAD appeal right in specified inadmissibility cases.
These can involve matters such as:
Security grounds;
Violations of human or international rights;
Serious criminality;
Organized criminality;
Misrepresentation in specified sponsorship circumstances; and
Other statutory restrictions.
Whether a person has an appeal right should therefore be determined by reviewing the applicable provisions of IRPA and the particular decision.
Where there is no statutory IAD appeal, Federal Court judicial review may need to be considered.
A person whose refugee claim is rejected by the Refugee Protection Division (RPD) may, if eligible, appeal to the Refugee Appeal Division (RAD).
A refugee appeal is different from an IAD immigration appeal.
The RAD reviews the RPD decision and the arguments made by the appellant. In circumstances permitted by law, the RAD can also consider new evidence.
Not every unsuccessful refugee claimant has a right to appeal to the RAD. Eligibility should therefore be confirmed after receiving an RPD decision.
Refugee appeals have particularly short deadlines.
Under the IRB’s current procedures, an eligible appellant generally has:
15 days after receiving the written reasons for the RPD decision to file the Notice of Appeal; and
45 days after receiving the written reasons to file the appellant’s record.
The appellant’s record is particularly important because many RAD appeals are decided based on the written materials without an oral hearing.
If a deadline has already been missed, an application for an extension of time may be required. An extension is not automatic.
Depending on the appeal, the Refugee Appeal Division may:
Confirm the RPD decision;
Set aside the RPD decision and substitute its own determination; or
Refer the matter back to the RPD for redetermination with appropriate directions.
The appropriate arguments depend on the findings made by the RPD and the evidence in the refugee record.
Judicial review is the process through which the Federal Court reviews certain decisions or matters arising under Canadian immigration law.
Judicial review is different from an appeal.
The Federal Court does not ordinarily conduct a new immigration hearing simply to decide whether it would have reached a different result. The Court reviews the administrative decision according to the applicable legal standards.
Depending on the case, issues may include whether the decision was reasonable, whether the decision-maker applied the law appropriately, or whether the applicant received procedural fairness.
An immigration judicial review proceeding generally begins with an Application for Leave and for Judicial Review before the Federal Court.
The requirement for leave means that the case does not automatically proceed to a full judicial review hearing.
The Federal Court first decides whether to grant permission for the judicial review to proceed.
If leave is refused, the proceeding ends.
If leave is granted, the Court sets the matter down for a judicial review hearing.
Strict deadlines apply to immigration judicial review proceedings.
Under section 72 of the Immigration and Refugee Protection Act, an application generally must be filed and served within:
15 days for a matter arising in Canada; or
60 days for a matter arising outside Canada,
after the applicant is notified of or otherwise becomes aware of the matter.
A Federal Court judge may allow an extension for special reasons, but an extension should not be assumed.
Where IRPA provides a statutory right of appeal, section 72 also generally requires that appeal right to be exhausted before judicial review is commenced.
Because these deadlines can be short, a negative immigration decision should be reviewed promptly.
A Visitor Visa refusal does not ordinarily carry an appeal to the Immigration Appeal Division.
Depending on the circumstances, an applicant may decide to submit a new application addressing the officer’s concerns or seek leave and judicial review before the Federal Court.
Judicial review may be considered where the decision raises a reviewable legal issue, including questions concerning the reasonableness of the decision or procedural fairness.
Whether reapplication or judicial review is more appropriate depends on the refusal reasons, application record, available new evidence, and circumstances of the applicant.
A refused Study Permit may also be challenged through Federal Court judicial review where appropriate.
Potential issues can concern the officer’s assessment of the evidence, reasons for the decision, or fairness of the decision-making process.
A new study permit application may sometimes be a practical alternative where the concerns can be addressed with new or improved evidence.
The appropriate option should be determined after reviewing the refusal and original application.
A Work Permit refusal generally does not have an ordinary IAD appeal process.
Depending on the circumstances, the applicant may consider reapplying or seeking leave and judicial review before the Federal Court.
The underlying application should be reviewed to determine whether the issue can be addressed through additional evidence or whether the refusal raises a legal issue appropriate for judicial review.
Some permanent residence refusals can also be subject to Federal Court judicial review.
These may include decisions involving:
Express Entry applications;
Provincial nominee permanent residence applications;
Economic immigration programs;
Humanitarian and compassionate applications;
Certain family-related applications where no IAD appeal exists;
Caregiver applications;
Business immigration applications; and
Other permanent residence decisions.
Whether another application, a statutory appeal, or judicial review is available depends on the particular immigration category and decision.
A refusal of a Humanitarian and Compassionate Application does not carry an ordinary appeal to the Immigration Appeal Division.
An applicant may, where appropriate, seek leave and judicial review before the Federal Court.
H&C judicial reviews can involve the officer’s assessment of establishment, family circumstances, hardship, the best interests of children directly affected, and other relevant humanitarian considerations.
The Federal Court does not simply reassess the H&C application from the beginning. The issue is whether there is a legal basis for the Court to intervene in the administrative decision.
Federal Court judicial review may also be available following certain refugee decisions.
For example, an unsuccessful appellant before the Refugee Appeal Division may seek leave and judicial review of the RAD decision.
Where a refugee claimant does not have a right of appeal to the RAD, judicial review of the Refugee Protection Division decision may be the available court remedy.
The appropriate process and deadline depend on the decision and procedural history.
Procedural fairness can be an important issue in Federal Court proceedings.
Depending on the circumstances, questions may arise about whether an applicant:
Had a meaningful opportunity to respond to concerns;
Was given appropriate notice of an issue;
Was treated through a fair process;
Had relevant submissions considered; or
Was affected by another procedural problem.
The requirements of procedural fairness depend on the context and type of decision.
Not every disagreement with an immigration officer amounts to a breach of procedural fairness.
Many judicial review cases involve the reasonableness of an administrative decision.
The Federal Court considers the decision and its justification in accordance with the applicable administrative-law principles.
A judicial review application should identify a reviewable legal issue rather than simply state that the applicant disagrees with the outcome.
The decision, reasons, evidence before the decision-maker, and applicable law must be considered together.
Judicial review is generally based on the record that was before the original decision-maker.
It is not ordinarily an opportunity to rebuild a weak immigration application by presenting new evidence that could have been submitted earlier.
There are limited circumstances in which additional evidence may be admissible before the Federal Court, but exceptions should not be assumed.
This is one reason why the original immigration application and complete record are important when assessing whether judicial review is appropriate.
If the Federal Court allows an application for judicial review, the Court may set aside the decision and return the matter for reconsideration.
The matter may then be reconsidered in accordance with the Court’s judgment.
The Federal Court does not ordinarily issue the requested visitor visa, study permit, work permit, permanent residence, or other immigration status itself.
A successful judicial review therefore does not necessarily mean that the underlying immigration application will ultimately be approved.
After an immigration refusal, clients frequently ask whether they should reapply or seek judicial review.
There is no single answer that applies to every case.
Relevant considerations may include:
The reasons for refusal;
Whether there is a statutory appeal right;
Whether the original application contained sufficient evidence;
Whether important evidence was overlooked or misunderstood;
Whether new evidence is now available;
Whether the concern can be corrected through a new application;
Whether there may have been a breach of procedural fairness;
Whether the decision raises a reviewable legal issue; and
The applicable appeal or Federal Court deadline.
In some circumstances, reapplication may address the underlying problem. In others, judicial review may be considered. The decision should be made after reviewing the complete record rather than relying only on a short refusal letter.
Understanding why an immigration application was refused is an important part of assessing the next step.
Depending on the type of application and circumstances, the refusal materials may include officer decision notes or other reasons explaining the decision.
For an appeal or judicial review, it may also be necessary to examine the complete record that was before the original decision-maker.
The appropriate legal strategy should be based on the actual decision and record.
Different proceedings have different deadlines, and they should not be treated interchangeably.
Examples include:
Family sponsorship appeals — generally 30 days after receiving the written reasons;
Overseas permanent resident residency obligation appeals — generally 60 days after receiving the decision;
Refugee Notice of Appeal to the RAD — generally 15 days after receiving the RPD’s written reasons;
RAD appellant’s record — generally 45 days after receiving the RPD’s written reasons; and
Federal Court judicial review under IRPA — generally 15 days for matters arising in Canada and 60 days for matters arising outside Canada.
Other proceedings may have different deadlines.
A person who receives an immigration or refugee refusal should therefore determine the applicable deadline immediately rather than assuming that the time limit is the same for every case.
At Nadeem Law Office, we assist clients with Immigration Appeals and Judicial Review, including:
Family sponsorship appeals;
Spousal sponsorship appeals;
Residency obligation appeals;
Removal order appeals;
Refugee Appeal Division appeals;
Federal Court applications for leave and judicial review;
Visitor Visa refusals;
Study Permit refusals;
Work Permit refusals;
Permanent residence refusals;
Humanitarian and Compassionate refusals;
Procedural fairness issues;
Refugee judicial review matters;
Review of refusal reasons and immigration records;
Preparation of appeal records and legal submissions; and
Representation at appeal and Federal Court hearings.
We review the decision, reasons, application or hearing record, available appeal rights, and applicable deadlines before advising on the legal options available.
Immigration refusals and negative decisions can involve strict appeal and Federal Court deadlines. The appropriate remedy depends on the type of decision and whether Canadian immigration law provides a statutory appeal right.
An appeal and judicial review are not interchangeable. An appeal may permit an appellate tribunal to reconsider issues within its statutory jurisdiction, while judicial review asks the Federal Court to review the legality of an administrative decision.
If you have received an immigration refusal, removal order, negative residency determination, sponsorship refusal, or refugee decision, obtaining legal advice promptly can help determine the available options and applicable deadline.
Nadeem Law Office assists clients with Immigration Appeals and Judicial Review through our offices in Mississauga, Cambridge and London, Ontario.
Contact Nadeem Law Office to schedule a consultation regarding an immigration appeal or Federal Court judicial review matter.
info@nadeemlaw.com