IMMIGRATION APPEAL DIVISION What It Is and How It Works qwewrt
ISBN 0-662 63824 7 Catalogue Number MQ21 18/1998 Produced by: Parliamentary and Public Affairs Immigration and Regugee Board Canada Building (Minto Place) 344 Slater Street, 14th Floor Ottawa, Ontario K1A 0K1 Visit our Web site: www.irb.gc.ca
REFLECTING CANADIAN VALUES Canada has a long tradition of welcoming people from other places. As a result, immigration has been a dynamic force within Canadian history and society. It has contributed to the formation of Canadian values, principles and hopes. It reflects our past and shapes our future. By welcoming others, Canada welcomes potential citizens to add to the richness and cultural diversity of our nation. Canada s immigration policies are based on the Immigration Act which reflects Canadian values. In keeping with the principle of fairness and integrity as stated in the Immigration Act, the Immigration Appeal Division within the Immigration and Refugee Board provides a forum for the exercise of a right of appeal while safeguarding the safety, health and good order of Canadian society. The Immigration Appeal Division hears appeals in cases where sponsored applications for permanent residence made by family class members have been denied. It hears other types of appeals as well including those of permanent residents, Convention refugees and visa holders who are subject to a removal order. 1
IMMIGRATION AND REFUGEE BOARD As part of the Immigration and Refugee Board, the Immigration Appeal Division shares in advancing the Board s mission, on behalf of Canadians, to make well-reasoned decisions on immigration matters, efficiently, fairly, and in accordance with the law. Nurjehan Mawani Chairperson Immigration and Refugee Board 2
ABOUT THE IMMIGRATION AND REFUGEE BOARD Created by an Act of the Canadian Parliament in 1989, the Immigration and Refugee Board (IRB) is an independent administrative tribunal performing quasi-judicial functions. The IRB s mission on behalf of Canadians is to make well-reasoned decisions on immigration and refugee matters, efficiently, fairly and in accordance with the law. The IRB s chief executive officer, the Chairperson, reports to Parliament through the Minister of Citizenship and Immigration Canada. The IRB consists of three divisions: the Convention Refugee Determination Division (also referred to as Refugee Division or CRDD), the Immigration Appeal Division (also referred to as Appeal Division or IAD) and the Adjudication Division. The Refugee Division deals exclusively with the determination of claims for refugee status made within Canada. The Appeal Division hears appeals from removal orders, refusals of sponsored applications for permanent residence by members of the family class and appeals by the Minister of decisions made by adjudicators. The Adjudication Division became part of the IRB in 1993. Adjudicators are independent decision-makers who determine whether a person will be allowed under the Immigration Act to come into or remain in Canada. In addition, they must review on a regular basis the status of any person detained pursuant to the Immigration Act. The members of the Refugee and Appeal Divisions are appointed by the Governor-in-Council for terms 3
IMMIGRATION AND REFUGEE BOARD of up to seven years while the decision-makers of the Adjudication Division are public servants appointed pursuant to Canada s Public Service Employment Act. Decisions rendered by the three divisions can be judicially reviewed by the Federal Court of Canada. However, leave of a Federal Court judge must be obtained to initiate such a review. The IRB is Canada s largest tribunal. Each year it renders over 40,000 decisions. Every aspect of the IRB s work touches on the life and liberty of the people who appear before it. 4
IMMIGRATION APPEAL DIVISION What it is and how it works? Every year, thousands of Canadian citizens and permanents residents apply to sponsor their close family members from abroad. Most of these applications are approved. In the minority of cases where sponsored applications for landing of family members have been refused, appeals can be made to a division of the Immigration and Refugee Board. That division is called the Immigration Appeal Division. The Immigration Appeal Division also hears other types of appeals, including those of permanent residents who have been ordered removed from Canada and those of recognized Convention refugees and visa holders who are subject to a removal order. 5
TYPES OF APPEALS Appeals to the Immigration Appeal Division of the Immigration and Refugee Board generally take two forms - sponsorship appeals and appeals from removal orders. 1 Sponsorship Appeals The Appeal Division hears appeals in cases where a sponsored application for landing by a member of the family class 2 has been denied by an immigration or visa officer from Citizenship and Immigration Canada (CIC). For example, the Appeal Division hears appeals where: 1. The applicant or sponsor believes there was a problem with the way the facts were presented or interpreted at the initial interview. 1 The Minister can also appeal to the Appeal Division from a decision by an adjudicator in the course of an inquiry. 2 The person is a member of the family class if she/he is: 1. your spouse or fiancé(e); 2. your dependent son or dependent daughter; 3. your father, mother, grandfather or grandmother; 4. your brother, sister, nephew, niece, grandson or grand daughter, if they are an orphan, under 19 years of age and unmarried; 5. a child under 19 years of age whom you intend to adopt and who is (i) an orphan, (ii) an abandoned child whose parents cannot be identified, or (iii) a child born outside of marriage, whose parents are separated or one of whose parents is deceased, if the child has been placed with a child welfare authority for adoption; 6. one relative, regardless of their age or relationship to you, if you do not have a spouse, son, daughter, father, mother, grandfather, grandmother, brother, sister, uncle, aunt, nephew or niece, who is a Canadian citizen or permanent resident, or whose application for landing you may otherwise sponsor. 6
IMMIGRATION APPEAL DIVISION Example: You immigrated here two years ago, leaving your wife in your country of origin. The circumstances are now right for her to join you in Canada. However, the information supplied by you and your wife during separate interviews differs substantially and she has not provided any documented proof of your marriage. The application is denied. You appeal the decision and try to provide an explanation for the inconsistencies and lack of documentation. 2. Laws, regulations or case law may have been applied incorrectly. Example: You and your brothers immigrated to Canada 10 years ago. Last year, your father died leaving your 66-year old mother alone in your native country. You file the necessary application for sponsorship. For the application to be processed, your mother is required to take a medical examination. She is diagnosed as having a serious disease and medical officers conclude that her admission to Canada would put an excessive burden on Canada s health care or social service system. The application is refused. You appeal the decision, on the basis that your mother s admission would not cause an excessive burden. 7
IMMIGRATION AND REFUGEE BOARD 3. There may be compassionate or humanitarian reasons for overturning the original decision. Example: In the second example above, your widowed mother is on her own, all her close family members having immigrated to Canada. She is no longer able to care for herself and you are very worried about her. It is very difficult for her to obtain medical help in her village. You are anxious to take care of her but are unable to go live with her as you have family and job commitments in Canada. You agree that while your mother s admission would put an excessive burden on Canada s health care or social service system you feel that there are sufficient humanitarian or compassionate reasons for allowing her to come to Canada to be with you. Please keep in mind that these are only examples provided to demonstrate how the process works. You may wish to discuss the specific circumstances of your case with your counsel. Appeals from Removal Orders The Appeal Division also hears appeals from permanent residents, visa holders and Convention refugees who have been ordered removed from Canada by an IRB adjudicator as a result of criminal convictions and/or certain other breaches of Canada s immigration laws. However, an appeal may not be made to the Appeal Division by persons 8
IMMIGRATION APPEAL DIVISION who, in the Minister s opinion, pose a danger to the public in Canada. Example: You are a 35-year old permanent resident of Canada. You have been in this country for 25 years, having come here from your country of origin with your parents when you were only 10. However, you have not yet applied for or been granted Canadian citizenship. Throughout your teenage years, you were in constant trouble with the law. This continued until you were convicted of a serious criminal offence. Since you are not a Canadian citizen, your criminal conviction means that you can be ordered removed from Canada. CIC immigration officials decide to deport you back to your native land, even though your entire family lives here and you have not been back there for 25 years. Because you feel that, having regard to all of the circumstances of the case, you should be allowed to remain in Canada, you appeal the removal order. Example: Your parents were sponsored to Canada by your brother who is a permanent resident. You accompanied your parents after completing an application for permanent residence in which you stated that you had never been married. In fact, you had been married and were subsequently divorced. This information comes to the 9
IMMIGRATION AND REFUGEE BOARD attention of immigration officials. You are ordered deported on the grounds that you were granted landing due to misrepresentation of a material fact on your application. You appeal the decision, admitting that you made the misrepresentation in your application. However, you feel that given all the circumstances of your case, you should not be removed from Canada. Please keep in mind that these are only examples provided to demonstrate how the process works. You may wish to discuss the specific circumstances of your case with your counsel. 10
THE APPEAL PROCESS How are Appeals made? If you have been notified that the sponsored application for landing of a family member has been refused or if you have been ordered removed from the country, you have 30 days to appeal. Under certain circumstances, the Immigration Appeal Division may extend the time period for filing an appeal. An appeal to the Appeal Division is initiated by completing a Notice of Appeal and filing that document with the Immigration and Refugee Board. How are Appeals heard? The Appeal Division is an independent tribunal with the powers of a court to issue summonses, require witnesses to testify during appeal hearings and receive credible and trustworthy evidence in deciding the outcome of an appeal. You have the right to be represented by counsel at all stages of the process. Your counsel may be a lawyer, a family member, a friend or a member of the clergy. The Minister of Citizenship and Immigration will also be represented by counsel at the hearing. Once your Notice of Appeal has been received, the hearing date is scheduled, usually within a few months of the time your record (documents from the Immigration file) is received by the Appeal Division from CIC or the Adjudication Division. 11
IMMIGRATION AND REFUGEE BOARD Your appeal will likely be dealt with at a public hearing with an interpreter provided, if necessary. However, you may apply to the Appeal Division to have your hearing held in private if there is a serious possibility that information brought out during the hearing would threaten the life, liberty or security of any individual. It is up to you and/or your counsel to persuade the Appeal Division to allow your appeal. You can give evidence yourself, orally or in written form, and you may bring witnesses forward to support your case (this may be witnesses in person or by telephone). You may also question the evidence brought forward by the representative of the Minister of Citizenship and Immigration. After the Appeal Division has considered all of the evidence, it will give its decision, sometimes on the same day the hearing concludes. On what grounds are Appeals made? Sponsorship Appeals If your sponsorship of a family member s application for landing has been refused and if you have satisfied the Appeal Division that the applicant is a member of your family (see page 6), you may appeal that decision on the ground(s) that the refusal is not valid and/or that there are sufficient compassionate or humanitarian reasons why your appeal should be allowed. However, the Appeal Division has no power to allow your appeal on compassionate or humanitarian grounds if it decides that the applicant does not meet the Act s definition of member of the 12
IMMIGRATION APPEAL DIVISION family class (for example, if your child is over 18 years old and not a dependant as defined by the Act). The factors that the Appeal Division will consider will vary depending on the reason for which the application for permanent residence was refused. Among the factors the Appeal Division may consider in reaching its decision on the compassionate or humanitarian grounds are: whether the admission of the applicants would result in the reunion in Canada of the appellant with close family; the strength of the relationship between the applicant(s) and the appellant; the degree to which the applicant is well established abroad; whether an applicant has demonstrated the potential to adapt to Canadian society; whether the parties to the application have obligations to one another based on their cultural background; whether the applicant is alone in his or her country; the availability of health services to the applicant in Canada and abroad (for refusals based on medical grounds); whether there is evidence of an improved medical condition at the time of the appeal (for refusals based on medical grounds); 13
IMMIGRATION AND REFUGEE BOARD whether there is evidence of rehabilitation or the risk of the applicant re-offending (for refusals based on criminal grounds); and the seriousness of the offence (for refusals based on criminal grounds). Please note that this list is not intended to be a complete list of all the factors which the Appeal Division may consider. Appeals from removal orders If you are a permanent resident, Convention refugee or holder of a valid visa or returning resident permit, and you have been ordered removed from Canada because of a criminal conviction or other breach of Canada s immigration laws, you may appeal the removal order on the ground(s) that the removal order itself is not valid and/or that, taking into consideration all the circumstances of the case, you should not be removed from Canada. The right of appeal for serious criminals is removed if the Minister is of the opinion that the person constitutes a danger to the public. Among the circumstances the Appeal Division may consider in reaching its decision are: the seriousness of the offence; the likelihood of re-offending; the evidence of rehabilitation; the length of time spent in Canada; the degree of establishment in Canada; the effect of removal on family members remaining in Canada; and the community and family support available. 14
IMMIGRATION APPEAL DIVISION Please note that this list is not intended to be a complete list of all the factors which the Appeal Division may consider. What happens when Appeals are allowed or dismissed? Sponsorship Appeals If your appeal of the refusal of a sponsored application for landing is successful, a CIC visa officer will reopen your family member s case and follow the Appeal Division s decision. If your appeal is dismissed, your family member s application will not be processed any further. Appeals from removal orders If your appeal of a removal order is successful, you will be allowed to remain in Canada. If the Appeal Division dismisses the appeal, you may be removed from Canada. The Appeal Division may also stay the execution of the removal order and impose certain terms and conditions with which you will have to comply over a period of time until your case is reviewed again. If during that time you comply with the conditions, the removal order may be cancelled and you may be allowed to stay in Canada. If, on the other hand, you fail to comply with the conditions, your appeal may be dismissed and the removal order will be enforced. Furthermore, for certain persons, if the Minister is of the opinion that you failed to comply with the conditions and that you are a danger to the public, you may be removed from Canada without any right to have the Appeal Division review the appeal further. 15
IMMIGRATION AND REFUGEE BOARD Reasons for decision In all sponsorship appeals, the Appeal Division is required to provide reasons for its decision. In all other cases, reasons are provided if one of the parties involved requests them within ten days. Judicial review of decisions of the Immigration Appeal Division Appeal Division decisions are subject to judicial review before the Federal Court with leave of that court. 16
IMMIGRATION APPEAL DIVISION The Sponsorship Appeal Process A Canadian citizen or permanent resident residing in Canada may sponsor a member of the family class CIC refuses the family member's application for landing The sponsor files an appeal at an Appeal Division registry Hearing of Appeal Allowed Dismissed CIC resumes processing of the sponsorship application Sponsor may apply for leave to begin an application for judicial review to the Federal Court Trial Division Leave granted Sponsored application for lannding could be refused on other grounds Sponsored application for landing is approved Judicial review by the Federal Court Trial Division Allowed* The case is returned for rehearing to the Appeal Division Dismissed* *There is a possibility of appeal to the Federal Court of Appeal where a serious question of general importance is certified Responsibility of: Immigration and Refugee Board Immigration Appeal Division (IAD) Department of Citizenship and Immigration (CIC) Federal Court of Canada 17
IMMIGRATION AND REFUGEE BOARD The Removal Order Appeal Process Appeal of a Removal Order Allowed Stay Dismissed May remain in Canada Terms and conditions imposed for a set period - may remain in Canada Removed from Canada Judicial review Judicial review Appeal reviewed Judicial review Minister is of the opinion that terms and conditions were breached and the person is a danger to the public - removed from Canada Allowed Stay Dismissed May remain in Canada Further terms and conditions imposed for a set period - may remain in Canada Removal from Canada Judicial review Responsibility of: Immigration and Refugee Board Immigration Appeal Division Department of Citizenship and Immigration (CIC) Federal Court of Canada 18
IMMIGRATION AND REFUGEE BOARD- IMMIGRATION APPEAL DIVISION Montreal 200 Rene Levesque Boulevard West Guy Favreau Complex East Tower, Room 102 Montreal, Quebec H2Z 1X4 (514) 283-7733 Toronto 74 Victoria Street Suite 400 Toronto, Ontario M5C 3C7 (416) 954-1000 Winnipeg 391 York Avenue Suite 220 Winnipeg, Manitoba R3C 0P4 (204) 983-3553 Vancouver Suite 1600 Library Square 300 West Georgia Street Vancouver, B.C. V6B 6C9 (604) 666-5946 19
IMMIGRATION AND REFUGEE BOARD This pamphlet explains Canada s immigration appeal process. It is not, however, a legal document. For precise, legal information, please consult the Immigration Act, Rules and Regulations. 20