Disagree with CIC? How to appeal to the Immigration Appeal Division

2014-04-10

man at witness standHave you applied to Citizenship and Immigration Canada (CIC) and been refused?  Did you think the decision was unfair?

CIC Officers are bound by the rules and regulations laid out by the Canadian government.  They are following written procedures, including fairness guidelines.  When it comes to appealing a decision made by a CIC Officer, visa officer or the Immigration Division – you may be able appeal to the Immigration Appeal Division (IAD) which is one branch of the Immigration Refugee Board.

Who can appeal?

There are three different categories for appeals.

First if your family sponsorship application was refused, the sponsor may appeal the decision, if there are sufficient reasons to appeal.  The reasons for the appeal are also called “grounds for appeal.”

The second category is a removal order appeal.  If you received a departure order, exclusion order, or deportation order, it may be possible for you to appeal the removal order.  You must be a permanent resident, a foreign national with a PR visa, a protected person or a convention refugee to appeal such a decision.

The third category for appeal is a permanent resident who received a decision from overseas that they failed to comply with their residency obligation.  Permanent residents must ensure they spend 730 days (2 years) physically present in Canada within every 5 year period.

Grounds for appeal

There must be a satisfactory reason for the appeal to take place.

According to the rules in place there are three grounds for appeal:

1) an error in law or fact;

2) a principle of natural justice was not observed; or

3) there are sufficient humanitarian and compassionate reasons (usually involved best interests of a child/children) to overcome a negative decision.

Your appeal will not be heard at the IAD unless you have sufficient evidence to file under one of those grounds for appeal.

I will explore these grounds for appeal in more detail in future posts.

Who can not appeal?

An appeal can not be made if you have been found inadmissible due to serious criminality, organized criminality, espionage or violating human or international rights.

In addition, foreign nationals who have been denied a visa, work permit, or study permit may not appeal those decisions.

What about misrepresentation?

If you have been found to be inadmissible based on misrepresentation on your immigration application, you can only appeal to the IAD if you are a sponsor’s spouse, a sponsor’s common-law partner, or a sponsor’s child.

Deciding whether to appeal

A decision to appeal to the IAD should be considered carefully.  Time and expense must be taken into account.  The deadline to file the Notice of Appeal is typically within one month from receiving a decision in Canada or within two months if you live overseas.

If you fit into one of the three categories discussed above (sponsorship, residency obligation (for a decision made overseas) or a removal order), and you feel confident you have grounds for appeal, then contact an immigration lawyer to evaluate your case and help you through the process.  The IAD is a superior court of record and is adversarial by its nature – you should not likely appear unrepresented.

About the author

Gianpaolo Panusa Gianpaolo Panusa is a Canadian immigration lawyer, writer, and founder of the PanCanadian Immigration Law Group based in Vancouver, Canada. Google+ Profile

Write a comment:

Your email address will not be published.