How To Appeal Canada Immigration Refusal Cases
Depending on the type of application, many immigration decisions can be appealed from either outside or inside Canada. The following types of decisions can be appealed (called “judicial review”) to the Federal Court of Canada:
● Visitor visa refusals
● Student visa refusals
● Work permit refusals
● Inadmissibility decisions, including criminal and medical inadmissibility
● Humanitarian and compassionate refusals
Often an applicant will receive a refusal of a visitor visa or a student visa in a decision letter that is general. An applicant can request the written reasons from the Visa Officer either through filing a Federal Court application or filing an Access to Information online request. It is important to request the written reasons prior to filing a new application so that any concerns from the Officer can be addressed in the new application.
What is the Spousal Sponsorship Appeal Process When Denied
Refusals of an overseas sponsorship or residency obligation decisions can be appealed to the Immigration Appeal Division (“IAD”), and in-Canada sponsorships can be challenged on judicial review to the Federal Court of Canada. The benefit of filing an appeal to the IAD is that new documents can be filed to support the genuineness of a spousal relationship.
Immigration Appeal Process Time: How Long Does A Decision Take in Canada
Sponsorship appeals, residency appeals, and removal order appeals are started by filing a Notice of Appeal with the Immigration Appeal Division. After the Notice is filed, the Minister prepares a copy of the underlying application and decision to send to the parties. The IAD Rules require that this Minister’s Record is sent within 120 days. A copy is provided to the appellant, the IAD, and the representative if listed by mail.
The IAD will review the record and determine if the case is appropriate for early settlement through the Alternative Dispute Resolution (“ADR”) process. Counsel can also initiate this request on their own setting out the reasons why the appeal should be filtered into ADR. If the ADR is not available, then the appellant must wait for a hearing date before the IAD which can take upwards of 12 months depending on the volume of cases and Members available to hear appeals.
After the appeal hearing, a Member may give an oral decision granting or rejecting the appeal. If the Member does not make a decision at the hearing, then a written decision is sent typically within six weeks.
Refugee Appeal Process in Canada
If you have a rejected refugee claim, then you may be allowed to appeal to the Refugee Appeal Division (“RAD”) of the Immigration and Refugee Board. New evidence can be filed in support of your appeal. The RAD has the power to grant refugee protection on appeal or to order a new refugee hearing if an error was made in the first decision. If the RAD denies your appeal, this decision can be challenged on judicial review to the Federal Court of Canada.
While a refugee claimant is waiting for a decision from the RAD or the Federal Court, they are entitled to apply or extend their work permit and to have coverage under the Interim Federal Health Program. Refused refugee claimants are entitled to a “stay of removal” while waiting for their appeal, which means they cannot be deported from Canada while waiting for a decision.
What are the Time Limits for a Refugee Refusal Appeal?
If a refugee claim is refused, the claimant has 15 days from the date they receive the decision to file a Notice of Appeal with the RAD. A claimant is deemed to have received the decision and reasons by the RPD within 7 days after the date listed on the notice of decision.
Within 30 days of receiving the RPD’s refusal, the claimant (now “Appellant” at the appeal stage) must file an appeal record with the RAD. An appeal record includes a completed RAD Form, affidavit of the appellant, any new evidence and exhibits, and a memorandum of fact and law explaining in detail the errors made by the RPD.
If an Appellant misses either of these deadlines, they must file a written application for an extension of time at the same time the Notice or the Appeal Record is filed. The Appellant must explain the reasons for the delay.
How Long Does a Refugee Appeal Take in Canada
From the time an appeal is filed with the RAD, a decision can take anywhere from 3 months to up to 18 months. At any time after the appeal is filed, the RAD may contact the appellant or their counsel to ask for additional information or written submissions however the onus is on the appellant to make sure they provide all of the documents and submissions to clearly identify the errors made in the RPD decision and what result they are requesting from the RAD.
The RAD Member has three options available to them when deciding an appeal. The RAD can either grant the Appellant protection and allow the appeal, they can dismiss the appeal and confirm the RPD’s decision, or they can send the Appellant’s claim back to the RPD for a new hearing to be re-determined by a different RPD Member.
Please contact immigration appeals lawyer Adrienne Smith if you would like more information about appealing an immigration decision made by a Canadian decision-maker.