CANADA GUIDE FOR APPEALING AGAINST (1)SPOUSE SPONSORSHIP OR FAMILY MEMBERS(2)FAILING TO KEEP RESIDENCY OBLIGATIONS(3)AGAINST REMOVAL ORDER(4)LOSS OF PERMANENT STATUS RESIDENCY(5)RETURNING TO CANADA FOR FILING APPEAL
Appeal for refused cases of spousal sponsorship or other family members
If you are a permanent resident of Canada or a Canadian citizen, and your application to sponsor the immigration of a close family member to Canada has been rejected by CIC, then you may appeal (within 30 days after the refusal) to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB).
The appeal may go through an informal alternative dispute resolution (ADR) process.
In most cases, a member will be holding a hearing of the appeal as per the IRB tribunal process.
The appeal process includes the involvement of two parties: the appellant and the Minister’s counsel representing the CIC.
The process is often public in order for the media to attend or report its on-goings.
If it is concluded at the end of the hearing that the appeal be allowed, then the CIC will resume processing the sponsorship application.
CIC though bound by the IRB’s decision, can refuse the application on other grounds by appealing to the IAD.
If the sponsor is not satisfied with IRB’s decision, then the sponsor himself or the Minister of Citizenship and Immigration may apply to the Federal Court of Canada to allow a judicial review of the IRB’s decision.
The Federal Court of Canada may either dismiss this application or grant a re-hearing.
Sometimes, for appropriate cases, the IAD may suggest deciding the appeal through Alternative Dispute Resolution (ADR). Under such circumstances, the sponsor and the Minister’s counsel have to permission to sit down with the pre-assigned Dispute Resolution Officer (DRO) by the IAD, to agree on a decision. If the matter is resolved like this, a hearing is not required.
As a sponsor, you may not appeal for a family member who is inadmissible to Canada due to the following reasons:
Committing of a serious and punishable criminal offence and as a result of which, having served a term of imprisonment for two years or more.
Participation in an organized crime
Human/international rights violation
B. Appeal for residency obligation rejection
As per the Immigration and Refugee Protection Act (IRPA) all permanent residents of Canada are required to be physically present in Canada for at least 730 days out of every five years. If found in contradiction to the IRPA by a visa officer the person’s PR status can be curbed. In this case, the person may appeal the CIC decision to the IAD of the IRB within 60 days from the date of the receiving of the decision letter from CIC.
The appellant can be outside Canada. But if he/she was in Canada at any time over the past 365 days, CIC must put forth his/her travel document to enable him/her to travel to Canada. In other cases, the appellant may himself appy to the IAD for a travel document. The appellant might have to be present at the hearing in person if the IAD issues such an order. After that, the CIC will provide a travel document to allow the appellant to travel to Canada for the hearing. However, if the document is not issued, the hearing may be held by telephonic.
A member will hear the appeal according to the IRB tribunal process. There are two parties involved, namely, the appellant and Minister’s counsel representing the CIC. The hearing is generally public so that media or members of the public may attend it and be able to report.
In case the appeal is rejected by the IAD, then the appellant or Minister’s counsel are allowed to apply for a permission from the Federal Court of Canada to provide a judicial review of the IAD’s decision. The Federal Court of Canada would either dismiss the application or return the case to the IAD for re-hearing.
C. Appeal against removal order to Immigration Appeal Division
The Immigration and Refugee Protection Act (IRPA) provides that permanent residents, protected persons and foreign nationals who are in possession of a permanent resident visa all have the right to appeal removal orders against them. In addition, the IRPA provides for a ground of appeal which applies only to permanent residents. The appeal is not against a removal order although it may result in the Immigration Appeal Division (IAD) making a removal order. The appeal is against a decision made by an officer outside Canada that a permanent resident does not meet the residency obligation found in section 28 of the IRPA.
What are removal orders?
Notwithstanding the general principle that permanent residents have the right to enter and remain in Canada, those rights are not absolute. Removal orders may be made against permanent residents if they are found inadmissible on any of a number of grounds: security, violating human or international rights, serious criminality, organized criminality, misrepresentation, failure to comply with any conditions imposed by the regulations or failure to comply with the residency obligation in IRPA.
In accordance with subsection 44(2) of IRPA, a permanent resident may be ordered removed only by the Immigration Division and not by the Minister, except in the case of a breach of the residency obligation.
A permanent resident enjoys a right of appeal to the Immigration Appeal Division (IAD) unless the removal order is base d on one of the first four grounds listed above. Thus there are two jurisdictional issues. The first one is whether the appellant is a permanent resident as defined in the IRPA. The question of determining whether a person is or is not a permanent resident is fundamental to the exercise of the board’s jurisdiction. The second issue is whether an appeal to the IAD is barred because the Immigration Division found the permanent resident inadmissible on one of the grounds enumerated in subsection 64(1) of the IRPA: security, violating human or international rights, serious criminality, or organized criminality.
Loss of Permanent Resident Status
Once acquired, permanent resident status can be lost in certain circumstances.
Subsection 46(1) of the IRPA sets out the four ways in which permanent residents can lose their status:
If they become Canadian citizens
On a final determination of a decision made outside of Canada that they have failed to comply with the residency obligation under section 28 of IRPA
When a removal order made against them comes into force
On a final determination under section 109 to vacate a decision to allow their claim for refugee protection or a final determination under subsection 114(3) to vacate a decision to allow their application for protection
Return to Canada for appeal
After a removal order is made against a permanent resident, they may leave Canada while their appeal is pending. In the case of a decision made outside Canada on the residency obligation, they may already be outside Canada.
Permanent residents do not lose their status until there has been a final determination of their appeal of their removal order. Also, permanent residents do not lose their status when a decision is made outside Canada that they do not meet the residency obligation. It is only when there has been a final determination of that decision that they lose their status. Therefore an appellant may be able to return to Canada as a permanent resident during the appeal process. In cases where an appellant has returned to Canada and the appeal under s. 63(4) is dismissed the IAD must issue a removal order, i.e. a departure order.