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Appeals and Judicial Review

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Receiving a negative decision isn’t necessarily the end of the road; many applicants have the right to an appeal before the Immigration Appeal Division or the Refugee Appeal Division, which are administrative tribunals within the Immigration and Refugee Board.

 

These tribunals can either re-decide the matter or send it back to be re-determined. Some applicants have the right to ask the Federal Court to perform a “judicial review” of the decision, in which the court will review the decision and may choose to send it back for a new assessment.




Immigration Appeal Division

 

Negative decisions concerning certain immigration applications can be appealed to the Immigration Appeal Division. If you decide to bring an appeal of a sponsorship or removal order, you must file a Notice of Appeal within 30 days of receiving the negative decision; for a residency obligation, you must file within 60 days.

 

The IAD may allow an appeal and set aside the original decision if there was an error in law or fact, a breach of a principle of natural justice, or – in some circumstances – if there exist compelling humanitarian and compassionate considerations, such as the best interests of a child.

 

Refugee Appeal Division

 

Under Canada’s new legislation, certain refugee claimants who receive a negative decision will have the right to appeal to the newly-created Refugee Appeal Division (RAD). This is an administrative tribunal and a branch of the Immigration and Refugee Board which will review decisions of the Refugee Protection Division. 

 

If you receive a negative decision you only have 15 business days after receiving the written decision in which to file your Notice of Appeal. you have 30 business days after receiving the written decision (in other words, approximately 15 business days after filing the Notice of Appeal) to file the rest of your appeal documents, including a transcript from the hearing, any evidence that supports your claim, legal authorities, the Notice of Decision and Reasons, and a memorandum – a document which states the mistakes made, the evidence filed in your claim, any new evidence you wish to provide and why it should be allowed, whether you wish to have an oral hearing and why, and what decision you want the RAD to make. Because preparing for an appeal is a demanding task and you only have 30 days in which to completely prepare, it is strongly advised that you seek legal advice immediately upon receiving a negative decision.

 

If you are not entitled to appeal to the RAD, or you were and you appealed but your appeal was unsuccessful, you may seek a remedy from the Federal Court.

 

Federal Court

 

Certain immigration and refugee decisions can be judicially reviewed by the Federal Court of Canada. In addition, if you have been ordered to leave Canada and have received a Direction to Report stating your departure date, you may seek to have the Federal Court temporarily suspend your deportation.  

After receiving a negative decision, you have 15 days in which to file a Notice of Appeal. Once your Notice has been filed, you then have 30 days in which to file an Application Record, which will provide a copy of the decision, the evidence relevant to the mistakes made, and the reasons the Court should review the decision. In this application, you are asking the Court to consider hearing your application by showing that an error was made or that the decision was not fair or reasonable.

 

The Court will either grant leave and examine the decision in greater depth, or it will deny leave, thereby refusing to further asses your claim. If leave is granted, you will proceed to the second step of the process: attending an oral hearing before the court and explaining why you believe the original decision was mistaken. At that point the Federal Court can agree with the original decision or send your case back for reconsideration.