This brochure gives general information about the
immigration appeal process. It is meant to be a
guide and not a substitute for independent legal
advice. Should you need further assistance,
please contact a lawyer.
sponsorship applications have been refused
by Citizenship and Immigration Canada
(CIC)
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This brochure looks at:
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Who has the right to appeal?
What kinds of decisions can be appealed
under the immigration law?
Who decides the appeal?
What is the appeal process?
Permanent residents who have removal
orders made against them have the right to
appeal the orders
Permanent residents found not to have met
their residency obligation (i.e., they have not
resided in Canada for at least 730 days in a
five year period) can appeal that finding
Who Makes Decisions on Appeal?
AN OVERVIEW OF APPEAL RIGHTS
AND PROCESS
Appeals made by permanent residents on
immigration matters go to the Immigration Division
(ID) and the Immigration Appeals Division (IAD) of
the Immigration Refugee Board (IRB).
Who Has the Right to Appeal?
Generally speaking, only permanent residents of
Canada have the right to appeal an immigration
decision. In some limited situations, “foreign
nationals” may have a right to appeal from the
issuance of a removal order.
The IAD and ID are both administrative tribunals
and must follow a process similar to what happens
in a court, although they are less formal.
The person who hears and decides the case is
called a member. IAD and ID members are
appointed by the Government of Canada. They
are supposed to be impartial.
A permanent resident is a person who is allowed to
live permanently in Canada and who may later
apply to become a Canadian citizen (provided that
he or she meets the citizenship criteria).
A General Review of What to Expect at an
Appeal Hearing
A foreign national is a person from another country
who is not a Canadian citizen or a permanent
resident.
Whether you are appearing before a member of the
IAD or the ID, there are certain things you should
know about these hearings.
This brochure only covers appeals by
permanent residents.
1. In the case of permanent residents, hearings
before IAD and ID are public hearings which
means that people not related to your case may
attend to observe. This does not happen very
often though.
2. These hearings are usually held in person.
Sometimes the hearings are held – in whole or
in part – by videoconference or teleconference.
What Kinds of Decisions may be Appealed?
Permanent residents have the right to appeal under
the following circumstances:
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As sponsors who wish to bring family
members to Canada, they can appeal if their
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3.
4.
5.
6.
7.
No matter what form the hearing takes, it must
always be fair.
The hearings will be conducted in either English
or French. If you are not fluent in either one of
these official languages, you have the right to
request an interpreter and one will be provided
for you by the Board.
Each division has its own rules of procedure.
The rules cover such matters as time limits,
evidence, documents and responsibilities of
counsel as well as other people appearing
before the Board.
All decisions are based on the evidence
provided and the law that applies to your case.
Members must provide reasons for their
decisions. Usually after hearing a case, the
member will not give his/her decision right
away. The decisions are usually put in writing
and mailed to the parties at a later date. It
usually takes several months before the
decision is mailed out.
At the hearing, you have the right to be
represented by legal counsel at your own
expense. Under the current law, if your
counsel is paid, then only lawyers, immigration
consultants and paralegals who are licensed to
practice immigration law can represent you in
an immigration matter, including your appeal.
decides that a person has done something which
makes them “inadmissible” to Canada, i.e., they
should not be allowed to either enter Canada, or if
they are already in Canada, they should be ordered
to leave.
The ID also holds detention reviews for people who
are detained by CBSA for immigration reasons. If
you are detained, you have a right to have the
detention reviewed. You should seek legal advice
and representation immediately.
When may a Permanent Resident be
Considered inadmissible?
CBSA may ask the ID to hold a hearing to
determine if a permanent resident is inadmissible if
that person:
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has failed in some way to comply with the
immigration law
is a security threat
has violated human or international rights
has been involved in crime or organized
crime
has engaged in misrepresentation
Misrepresentation means you misrepresented
certain facts, or failed to disclose certain
information at the time you applied for permanent
resident status. This information must have been
relevant to your application. For instance, when
you applied to immigrate to Canada, you did not
disclose the fact that you had a dependent child.
You subsequently tried to sponsor the child to
Canada. When this happens, CIC checks to see if
you have declared this child in your initial
application. If you have not, CIC may initiate an
investigation against you for misrepresentation.
Misrepresentation may also be alleged against you
if, for instance, you were sponsored by your
spouse to Canada but just before coming to
Canada, you and your spouse became separated
8. You have the right to be heard and to present
evidence and arguments.
9. You have the right to an interpreter.
10. You may call witnesses to support your case.
APPEALS BEFORE THE IMMIGRATION
DIVISION
The Immigration Division (ID) holds admissibility
hearings for people who are believed to have
contravened the Immigration and Refugee
Protection Act (IRPA). This usually happens when
the Canada Border Service Agency (CBSA)
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and you did not inform immigration about the
change in your marital status.
Appeals by CBSA of decisions on
admissibility made by Immigration Division
What Happens at an Admissibility Hearing?
1. Sponsorship Appeals
When the CBSA requests an admissibility hearing,
it will prepare a report which explains why you
should not be allowed to enter or remain in
Canada, including the specific section of the
immigration law that CBSA claims you have
breached. The report will be sent to you and to the
IRB. The ID will then hold a hearing.
If you are a Canadian citizen or a permanent
resident and your application to sponsor the
immigration of a close family member to Canada
has been refused, you may appeal to the IAD.
Some of the most common reasons for rejecting
sponsorship applications are:
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Before the hearing, you should receive further
information from CBSA about the case they have
against you. At the hearing, a person representing
CBSA, called the Minister’s Counsel, will tell the ID
member why you should not be allowed to enter or
remain in Canada. You have the right to respond
to what the Minister’s Counsel says. You may also
submit your own evidence or call your own
witnesses to support your case.
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After considering all the evidence, the ID member
will make a decision. If the member decides to
issue an order to remove you, you have the right to
appeal that decision to the IAD. If the member
decides not to issue a removal order against you,
the CBSA will also have the right to appeal that
decision to the IAD.
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APPEALS TO THE IMMIGRATION
APPEAL DIVISION
In the following circumstances, you can not
appeal if your family member has been found to
be inadmissible due to:
Types of Appeals before the IAD
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The Immigration Appeal Division (IAD) hears four
types of immigration appeals:
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If you are sponsoring your spouse and
immigration believes that your spouse
entered into the marriage with you for the
purposes of immigrating to Canada or that
your marriage is not genuine
If you are sponsoring your parents, you do
not meet the minimum income requirement
to be a sponsor
If you are sponsoring your spouse or your
parents, immigration believes that your
family members will not be able to support
themselves and will be relying on social
assistance once they come to Canada
Your family member has a certain medical
condition which immigration believes will
cause an excessive demand on Canadian
society
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Appeals by sponsors in family class cases
Appeals of removal orders made against
permanent residents
Appeals by permanent residents found not
to have met residency requirements
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A serious criminal offence that was punished
in Canada by a term of imprisonment of 6
months or more
conviction of a crime outside of Canada and
the foreign conviction or criminal act carries
a maximum sentence of 10 years or more
under Canadian law
Involvement in organized crime
Security grounds
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Violations of human or international rights,
or
Misrepresentation (unless the person is your
spouse, common-law partner or child)
An appeal from a removal order must be filed
within 30 days of its issuance. There will be a
hearing before an IAD member to decide if the
order is valid. If the appeal is allowed, the removal
order is set aside and you will be allowed to remain
in Canada. If the appeal is dismissed, the removal
order will be upheld and you will have to leave
Canada.
In situations where you may file the appeal, you
have 30 days after you receive a copy of the
decision to appeal to the IAD.
An appeal is filed by completing an IAD appeal
form. Canada Immigration will send you a copy of
this form with the refusal letter. This form can also
be downloaded and printed out from the IAD
website: http://www.irb.gc.ca. The completed form
can be mailed to IAD or delivered there in person.
Instead of deciding to allow or dismiss the appeal,
the IAD may decide to “stay” the removal order for
a period of time. This means that the order is
temporarily frozen. The IAD will consider your
appeal at the end of this stay period (e.g. two or
three years later). If the order is stayed, the IAD
will impose certain conditions on you, such as
reporting regularly to a CBSA office or advising the
CBSA every time you move, during that time
period. The IAD may, at any time, change the
conditions or cancel the stay. If the IAD cancels
the stay, it will then decide to either allow or
dismiss the appeal.
Sometimes it may be unclear as to whether the IAD
could hear your appeal. One example is when you
sponsor a family member, such as a child, but you
had never declared you had this child in your own
application for permanent resident to Canada. The
child is therefore “excluded” from the family class
definition. In that case, there are different legal
opinions about whether the sponsor has the right to
appeal the decision to the IAD. It is best to seek
legal advice if you are in this situation.
3. Residence Obligation Appeals
Generally speaking, IRPA requires permanent
residents to be physically in Canada for at least
730 days out of every five years. If you are outside
of Canada and a visa office finds that you have not
met this residency obligation, you may lose your
permanent resident status. You may appeal that
decision to the IAD. You must appeal no later than
60 days after receiving the decision letter.
2. Removal Order Appeals
Permanent residents who have been issued a
removal order by the ID may also appeal to the
IAD. However, you can not appeal if you have
been found to be inadmissible to Canada because
of:
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Violations of human or international rights
A serious criminal offence that was punished
in Canada by a term of imprisonment of 6
months or more
conviction of a crime outside of Canada and
the foreign conviction or criminal act carries
a maximum sentence of 10 years or more
under Canadian law
Involvement in organized crime
Security grounds, or
In some cases, you may be able to get a travel
document to let you enter Canada for the hearing.
If you are not in Canada for the hearing, the
hearing may be held by telephone.
If the appeal is allowed, you will be able to keep
your permanent resident status. If the appeal is
dismissed, you will lose your permanent resident
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status. If you are in Canada, the IAD will order
your removal from Canada.
In the case of spousal sponsorship appeal,
sometime after you have filed the appeal, the
Minister’s Counsel will send you a record
containing documents regarding your appeal.
4. Minister’s Appeals
The Minister representing the Government of
Canada may also appeal a decision on
admissibility made by the ID to the IAD.
You may also at a later date receive a letter from
the IAD to appear at an assignment court on a
specific time and date. You should be there on the
date and time stated. If you are ready to go ahead
with the appeal, the IAD will give you a date of
appeal at the assignment court.
General Information about Appeals before
the IAD
Generally speaking, if you are appealing to the
IAD, you need to note the following:
Some sponsorship appeals go through an informal
alternative dispute resolution (ADR) process. If
your case is chosen for ADR and you agree to
ADR, this means you will sit down with the
Minister’s Counsel to discuss your case. You will
be questioned by the Minister’s Counsel. If your
case is settled through ADR, you do not have to go
through a full hearing and your application to
sponsor your family member will continue to be
processed. If not, you still have the right to
continue with your hearing before a different
member of the IAD.
1. Grounds for Appeal
The IAD may allow an appeal and set aside the
original decision if there was:
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an error in law or fact
a breach of the principle of natural justice
In some cases, the IAD may give special relief and
allow an appeal based on humanitarian and
compassionate considerations including the best
interests of a child. In sponsorship appeals, the
IAD will only consider granting this special relief if
the permanent resident who is appealing meets the
definition of “sponsor” and the family member being
sponsored meets “family member” definition under
IRPA.
When an appeal hearing date is assigned, you
should be ready for the hearing on that date. If you
are not ready or if your lawyer is not available on
that day, you or your lawyer may ask for the date to
be changed to a later date by sending a letter to
the IAD explaining your situation. The IAD may or
may not agree to change the date of the hearing
depending on whether they think you have good
reasons for making this request.
2. What Happens after an Appeal is Filed
Sometime before the hearing date, you will receive
a package prepared by the Minister’s Counsel.
This package should contain the material the
Minister has relating to your case. If you receive
this package, make sure you bring it to your lawyer.
To start your appeal process, you have to file a
Notice of Appeal. This form usually comes with the
decision that you want to appeal from.
After you file the Notice of Appeal, you will receive
a letter from the IAD acknowledging that it has
received your notice.
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3. How to Prepare for your Appeal
Even if you have provided copies of your
documents before the hearing, you must bring the
original documents to the hearing if you have them.
The first thing you should do is to consult with a
lawyer if you do not have one already.
If you would like to bring witnesses to the hearing,
you must let the IAD and the Minister’s Counsel
know at least 20 days before the hearing. You
have to tell them who the witnesses are and why
these witnesses will be testifying at your appeal
hearing. You may call more than one witness.
There is a form that you will need to fill out for the
witnesses. If the witness is not in Canada, he or
she can testify via teleconference. You must let
the IAD and Minister’s Counsel know about this too
so that the IAD can set up teleconferencing at your
appeal hearing.
It is your responsibility to show that the decision
you are appealing is not legal. In some cases, you
may also appeal on the basis of humanitarian and
compassionate grounds. Speak to a lawyer about
your specific case to see what grounds of appeal
apply in your case.
It may be some time after you have filed the appeal
before you have your IAD hearing. In the
meantime, you should start collecting evidence that
is relevant to your case. Depending on what your
appeal is about, the evidence you need may
include documents, letters, photos, information
about the relationship between you and your family
members, information about your children, and
information about yourself (such as income and
employment information).
If you or your witness needs an interpreter, you
must let the IAD know at least 15 days before your
hearing. The easiest thing to do is to let them
know this at the same time you file copies of your
documents and your witnesses’ list, if any.
If you would like to use these documents at your
hearing, you must make two copies of all of your
documents. You must send one copy to the IAD
and one copy to the Minister’s Counsel. Their
addresses are on the material that the IAD sends
to you after you have filed your appeal. The
documents must be received at least 20 days
before the hearing. If you do not send in your
documents in advance, the IAD member may not
let you use the documents at your appeal hearing.
4. What Will Happen at the Appeal Hearing?
As you are the one asking for an appeal, you get to
present your evidence first. If you have counsel,
your counsel will help you by asking you questions
so that you can give your evidence. If you do not
have counsel, you should tell the IAD member what
you think is important in your case.
The IAD member may have questions for you and
may ask you these questions while you are giving
your evidence or after you finish giving your
evidence.
If your documents are not in English or French,
they must be translated and the translation must be
sent along with one copy of the documents to the
IAD and one copy to the Minister’s Counsel. The
person who translated the documents must attach
a statement certifying that the translation is
accurate.
After you give your evidence, the Minister’s
Counsel will also question you on the evidence you
have given. The Minister’s Counsel’s job is to
show that the original decision is correct. He or
she will try to ask you questions to show, for
instance, that what you have said is not true or that
it is not supported by the evidence in the case.
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grant permission. Therefore, it is very important for
you to present your case as best as possible at the
appeal hearing. The more evidence you could
provide the better.
After your testimony, you may ask your witness, if
you have any, to testify. The witness will go
through the same process as you.
If the Minister’s Counsel decides to call a witness
(which is not usually the case), you have the right
to question their witness as well after his/her
testimony.
On the other hand, if you win at the IAD, the
Minister’s Counsel may also try to challenge the
decision at the Federal Court. You should get legal
advice if you are in that situation as the Court
process is quite complex.
After all the witnesses have testified, you or your
lawyer will have a chance to explain why you think
you should win the appeal. The Minister’s Counsel
will then make his/her comments about the case.
Finally, you will have the chance to respond to the
comments made by the Minister’s Counsel.
Often someone who has lost an immigration case
will talk about “appealing” an immigration decision
to the Federal Court. Actually, the Federal Court
does not hear “appeals” from immigration
decisions. A “judicial review” is different from an
appeal. If a person has the right to appeal, usually
this means at the appeal hearing the person has a
chance to present all the facts – and even bring in
new facts – as well as arguments in support of his
or her case. In a judicial review, the Court will
usually consider the merits of the case based only
on the information that had already been presented
to the immigration authorities, and the applicant
has to show that some legal errors had been made
in the case. The Court will not let you win the case
even though the judge may disagree with the initial
decision.
Usually only half a day is scheduled for the
hearing. Sometimes though, you will need more
time to present all your evidence. The IAD
member may schedule another hearing date in
order to continue the hearing until all the evidence
and submissions have been presented.
The IAD member may, at the end of the hearing,
give you the decision orally. In most cases though,
the IAD member will send you the decision and the
reasons by mail at a later date.
Also, anything could happen at the hearing that
complicates the process. For instance, sometimes
there may be a problem with the interpretation. If
you have any concerns during the hearing, you
should raise your concern with the member. If you
do not say anything at that time, you may not be
able to raise it after you have received a negative
decision from the IAD.
HOW SHOULD I SEEK HELP?
You should consult a lawyer. If you don’t have a
particular lawyer in mind, you can check the
YellowPages phonebook or phone the Lawyer
Referral Service of the Law Society of Upper
Canada at 416-947-3330 or toll free 1-800-2688326 to get referral to paralegal or immigration
lawyers.
5. Judicial Review of IAD Decisions
If you do not have the financial ability to hire a
lawyer, you can try to apply for legal aid. You can
check Legal Aid Ontario’s contact information in the
“Legal Aid” section of the WhitePages phonebook
or at your local community legal clinic. Contact
If you are not happy with the decision, you may
apply to the Federal Court for judicial review.
However, you must first ask for the Court’s
permission, and in most cases, the Court does not
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information for community legal clinics is available
in the “Legal Aid” and “Legal Clinic” sections of the
WhitePages phonebook and the “Lawyers” section
of the YellowPages, or on Legal Aid Ontario’s
website at: http://www.legalaid.on.ca/.
Reference Link : The Immigration Refugee Board
website has a number of information brochures and
bulletins about the IRB procedures. The material
contained in this brochure is based in part on the
materials produced by the IRB. For more
information about the IRB, visit:
http://www.irb.gc.ca
This booklet provides general information only.
Each particular situation is different, and the law can
change. If you have any legal problems, please
contact a lawyer or local community legal clinic.
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