Appeals before the Immigration Appeal Division

Joel Sandaluk / Partner, Immigration Lawyer Do you know someone whose application to sponsor a member of their family to Canada has been rejected? Are you a Permanent Resident who has failed to comply with the residency obligation? Have you or someone you know been ordered deported from Canada? If you do, they may have a right of appeal to the Immigration Appeal Division [IAD]. The IAD is responsible for determining whether applications for permanent resident status made by members of the family class were wrongly decided and deciding whether removal orders issued against permanent residents or convention refugees should be executed. The IAD is a quasi-judicial tribunal which hears cases in a manner similar to a regular court using an adversarial model. This means that the Government of Canada appears at the IAD to argue that visa refusals should be upheld and deportation orders executed. In addition to having the jurisdiction to determine whether lower tribunals or visa officers have committed errors of law when rendering their decision, the IAD also possesses an extremely important “equitable” jurisdiction. This means that the IAD has the ability to allow appeals even in cases where a lower tribunal has made a legally correctly decision if the IAD is of the view that there exist sufficient humanitarian and compassionate circumstances to warrant the granting of special relief in this case. Although the IAD is not a court of law and efforts are made to keep hearings as informal and accessible to the general public as possible, complex legal issues are often argued before the IAD and as a result, it is prudent to attend hearings represented by a lawyer. IRB Sign Frequently Asked Questions How do I know if I have a right of appeal to the IAD? Figuring out whether you have a right of appeal to the IAD can be fairly complex. Many permanent residents and Convention refugees who have been ordered deported from Canada have a right of appeal to the Immigration Appeal Division, provided that they were not sentenced to a term of imprisonment which exceeds of 6 months or more. Permanent Residents who have failed to comply with their residency obligation (being physically present in Canada for 2 of every 5 years) also have the right to appeal their cases to the IAD. Further, in addition to people who have been issued removal orders, the IAD also has jurisdiction over refusals to grant visas to people who have been sponsored to Canada as members of the family class. These refusals may be caused by an Immigrant’s criminal record, medical problems, or an adverse immigration history. How long does it take to have my case heard by the IAD? Due to administrative delays, the IAD has a significant backlog and as a result it may take months before your case will be before a decision maker. It is imperative to use this time wisely and gather evidence and prepare legal arguments to present to the Board Member prior to the hearing of your appeal. What types of evidence can I lead before the Immigration Appeal Division? Because the IAD is not a court of law, it is not bound by strict rules of evidence. This means that the tribunal can receive into evidence anything that it considers to be “credible and trustworthy”. This means that it is important to provide all documentary evidence which is corroborative of the allegations that you have made, either in your application for Permanent Residence or in your defense against deportation. This includes evidence of travel, financial support, and communication between yourself and the foreign partner you are sponsoring. In the context of a removal order appeal, it also includes evidence of rehabilitation including certificates from programs, letters from counsellors and community leaders as well as letters of support from family members. Because each case is complex and the issues involved are expansive, it is important to be careful to ensure that all relevant documentary evidence is put before the tribunal. How can Mamann, Sandaluk & Kingwell help me at my immigration appeal? The lawyers at Mamann, Sandaluk & Kingwell have appeared before the Immigration Appeal Division many times and represented clients in every type of appeal that is heard by the IAD. Our experience identifying issues and raising legal arguments that will meet with success before the IAD is unparalleled in Canada. Unlike other Immigration boards and tribunals, the IAD’s humanitarian and compassionate jurisdiction makes it uniquely situated to consider your case in its entirety and make a fulsome decision based on every element of your life. For many people, this is their last and best opportunity to achieve a just result in their dealings with Immigration Canada. It is important that this hearing be taken serious and the opportunity not be squandered. If you are the subject of a removal order, or if your application to sponsor someone as a member of the family class been denied, please contact Mamann, Sandaluk & Kingwell as soon as possible so that we may arrange for a consultation to discuss your case. Recent Cases The Immigration Appeal Division quashes a visa officer’s refusal to permit a Canadian citizen to sponsor her spouse to Canada. The Immigration Appeal Division allows an appeal, permitting a Permanent Resident to resume their residence in Canada after an absence of many years. The Immigration Appeal Division allows the appeal of a permanent resident who had been ordered deported due to his criminal record.]]>

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