Has your immigration application been denied? The Canadian government denies applications every day, from family sponsorship applications to student visas. Even a tourist visa may be denied.
In many cases, these decisions may be appealed and the migrant may successfully convince the government to let them live, work, or study in Canada. It isn’t easy. To be successful, you’ll need the help of experienced immigration appeal attorneys.
How Do Immigration Appeals Work?
When you think you have grounds for an appeal you can file an Application to the Federal Court putting them on notice that you intend to appeal. Your attorney must then file a Memorandum of Fact and Law outlining the reasons for your appeal. You may not represent yourself in these proceedings.
Appeals are made before the Immigration Appeal Division (IAD).
What Kind of Evidence Will I Need to Make an Appeal?
You can present any information that you and your attorney agree is credible, trustworthy, and relevant.
This can include:
- Logs of digital conversations that prove a relationship.
- Phone records.
- Travel tickets and receipts.
- Receipts that help to show your physical location.
- Evidence of financial ability.
- Evidence of shared assets.
Who Has the Right to Make an Immigration Appeal in Canada?
There are several types of people who can make an appeal.
The first are individuals who are facing a removal order. They can appeal as long as they haven’t been sentenced to prison for 6 months or more.
The second are those who have had a family sponsorship visa refused.
The third are those who are permanent residences who are facing removal because immigration officers have reason to believe they have failed to meet their residency requirement, which demands that they remain physically present within Canada’s border for 2 out of every 5 years.
Who cannot Appeal a Removal Order in Canada?
You cannot appeal if you are found to be guilty of serious criminality. That’s any crime punished or punishable that would be punishable in Canada by a maximum of at least ten years. You also can’t appeal if you’re found to be a member of an organized crime or terrorist organization.
Those who are found to have committed human rights violations also cannot appeal.
Finally, those who are found to have misrepresented themselves at any point during the application process cannot appeal their decision. There is a single exception: sponsored family members who are the spouse, common-law-partner, or child can appeal an accusation of misrepresentation. They will have a chance to demonstrate that no misrepresentation existed.
What Types of Immigration Appeals Do Immigration Courts Hear?
The IAD hears immigration appeals where permanent residency is at stake, including sponsorship appeals, removal order appeals, and residency obligation appeals. They are the only type of immigration application that strictly speaking has the right to appeal under the Immigration and Refugee Protection Act.
For temporary visas such as student visas or temporary work permits the case would have to go directly to judicial review before the Federal Court of Canada. The Federal Court does have the option to overturn the refusal.
Federal courts generally only overturn these decisions in the event there was an error in the law, in the event there was an error in fact, an event there was an error in law or fact, or in the event that the decision was clearly unreasonable in light of the facts.
What’s the Immigration Appeal Division Processing Time?
It can take six to 24 months to successfully complete the appeals process. Most appeals will be handled within one year. The length of time that the appeals process takes can be a good thing, as it can give you time to gather your evidence and strengthen your case.
What Happens If Your Appeal is Allowed?
Immigration, Refugees, and Citizenship Canada (IRCC) finishes processing your application as if it hadn’t been denied.
What Happens If Your Appeal is Stayed?
A stayed appeal means the removal order gets put on a temporary hold and you’ll be allowed to remain in Canada on a conditional basis. The IAD will consider your appeal at a later date.
The IAD may cancel or change the conditions of the stay at any time. If they do, they will generally allow or dismiss your appeal at that time.
The conditions often include making regular reports to the IAD, making reasonable efforts to seek and maintain full-time employment, avoiding criminals and criminal activities, refraining from the use of alcohol, refraining from the ownership or possession of weapons, keeping the peace and being of good behavior, taking steps to repay debts owed to creditors and provide proof of such steps to the Agency, and refrain from the illegal use or sale of drugs. You might also be asked to follow or continue a psychotherapy program if the IAD officer sees a need, or to attend anger management programs if the IAD officer sees a need.
The IAD may also set other discretionary conditions based on the appellant’s situation as established during the IAD hearing. The burden of proving that you’ve met these conditions rests with the appellant should any question arise.
What Happens If Your Appeal is Dismissed?
You still have one more chance for success. You can request a judicial review of IAD’s decision by taking your case before the Federal Court of Canada. You’ll have to move fast, however. If your appeal is dismissed IAD will issue a removal order.
Immigration Appeals are Complex. Get Help from a BC Immigration Lawyer Today.
Our experienced, dedicated immigration lawyers have decades of experience handling immigration appeals successfully. Our team can give you your best chance of success.
We even have attorneys here in our Surrey office who speak fluent Mandarin and Punjabi.
Contact us to make an appointment today. We are happy to set up a video chat appointment if you are not currently located near our office in Surrey, BC. Our team is ready to work with you!