Last Updated On 11 October 2022, 9:13 AM EDT (Toronto Time)
Any applicant who submits an application for immigration (permanent residency) to Canada wishes to get a positive decision from the immigration authorities. However, this does not always happen.
Sometimes the Canadian immigration officer is not satisfied with your application and might refuse your application. Currently, the number of immigration application refusals is quite high. There are many reasons for refusal, depending on your case.
The most common reason for refusal is the presentation of incorrect or incomplete documents. Also, sometimes a refusal could be simply the mistake of the officer considering the case, due to his subjective vision.
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Most people think that a refusal is an irreversible decision. However, this is not correct. Visa refusals can be appealed if refusal is because of very specific reasons. You can certainly identify the reason and rectify the circumstance that led to the refusal.
Once you do that, there is a chance for a positive result. Remember, re-submitting your application without understanding and rectifying the possible mistake will not change your immigration decision.
Appealing an immigration (permanent residency) decision
Now that you know that you can appeal your immigration decision, it is important to understand what it means to have the right to appeal. As an applicant, you have the right to appeal.
You have to present your case to the Immigration Appeal Division (IAD). IAD is a division of the Immigration and Refugee Board of Canada (IAD). Firstly, the IAD member hears your case and could decide in your favour. So, you wouldn’t have to take your case to the immigration officer in this case.
What is Alternative Dispute Resolution:
There is also a possibility for alternative dispute resolution (ADR). An Early Resolution Officer (ERO) may also call you to set up a session for alternative dispute resolution (ADR). Only in suitable instances is ADR indicated.
An ADR is a casual meeting between you, the Minister’s Counsel, and an ERO to discuss the matter, clarify the concerns, and urge both parties to reach an agreement. There is no need for a hearing if your appeal is handled through ADR.
Who can appeal an immigration decision?
You have the right of appeal in the following situations-
Family Sponsorship refusal
You can appeal in cases of spousal or parental sponsorship refusal. This option also applies to other family members like siblings, nieces, nephews, uncles, and aunts. Please note that a case of inland spouse does not qualify.
PR visa holder removal
When you apply for a PR from outside Canada, you get usually get a single-entry visa to travel to Canada. This is commonly called the PR visa. However, you have to validate your COPR and become a permanent resident when you arrive. Sometimes things go wrong at the port of entry and you may get a removal order. However, you have the right to appeal this decision.
Removal orders for protected persons and permanent resident
If you get a removal order as a PR or a protected person at an admissibility hearing, you can appeal the decision at Immigration Appeal Division (IAD).
Losing PR due to residency obligations
As a PR you need to meet minimum residency obligations. If not, you might lose your PR status. When this happens, you can appeal the decision. You can make a residency obligation appeal if you applied to a Canadian visa office for a travel document while you were overseas.
Sometimes when the Immigration Division renders a decision in your favour and lets your stay in Canada, the Minister of Public Safety can appeal to the IAD. They do this when they do not agree with that decision. However, you have the right to appeal this decision.
How to appeal an immigration decision?
Each division of the IRB makes decisions on different immigration matters. However, they all follow an administrative tribunal process. This process is similar to what happens in a court.
However, it is less formal and more flexible. It takes many forms to ensure that whatever decision is made is well-reasoned and fair. The tribunal is based on Canada’s law, international obligations, and humanitarian traditions.
You need to follow these steps to appeal an immigration decision-
File your notice of appeal
The first thing that you need to do is file a notice of appeal. You need to send a complete Notice of Appeal form, for every person in your family who has been affected by the decision.
Also, you need to send a copy of the decision letter that you received to the IAD. The deadline for each case is between 30-60 days depending on your case. The days are specified on your refusal letter or removal order.
Prepare your case
The next thing that you need to do is prepare your case. You have to prove that the decision should be changed in your favor. You can use any evidence to prove your case.
Additionally, you will need to prove how the law and facts support your case. Moreover, the Minister’s Counsel will try to show how the law and facts do not support your case.
Prepare for an early resolution
An Early Resolution Officer (ERO) may contact you or your counsel to obtain additional information regarding your appeal. They will discuss your case to decide if your appeal can be resolved without an oral hearing.
If the ERO believes that your case should be scheduled, they give you a date and time for your hearing. Also, they will inform you about how to prepare for your hearing. Once you ok with the hearing date, you must be ready to go ahead on that date and at that time. If you hire a counsel, it is the responsibility of your counsel to prepare you for your hearing.
Prepare for your hearing
Once you know the date and time for your hearing, you need to prepare your case well before your hearing date. You need to submit copies of your documents, witness information, and interpretation needs to the IAD and the Minister’s Counsel. This should usually be done at least 20 days before your hearing.
Attend your hearing
The next step is for you to attend your hearing. You or your counsel need to explain why the evidence shows that your appeal should be allowed. The Minister’s counsel will also make submissions to explain their position. Closing arguments will be made at the end of the hearing.
Receive your decision
Lastly, you will receive a decision. The members will consider all the evidence from both sides. They will carefully study what the law says and make a decision on the basis of that. If your appeal is allowed, the initial decision is overturned.
If your appeal is not allowed, then you can file for judicial review at Federal court challenging the IAD decision.
Frequently Asked Questions:
Do I need a lawyer to file my immigration appeal?
No, you can self represent your case throughout the appeal. Immigration representatives or lawyers are only suggested given their fluency and education in the legal process.
What should I avoid during the appeals?
Do not protest in front of Immigration Appeal Division or do public interviews citing details of your case, while appeal is in progress. As it is considered as pressurizing the decision maker through public appearance and may turn out to be negative for your case.
Can I appeal to IAD if my study visa is refused?
Temporary residency visa refusals can only be appealed at federal court of Canada. You can find out more about it here.
How long does it take for the whole process of Immigration Appeal?
The total time depends on the complexity of the case. It may take anywhere from 7 months up to 3 years or even more.