Immigration Appeals – Part 22012-03-08
In this post, I’ll continue to discuss Canada immigration appeals, continuing from Part 1 earlier.
Grounds for appeal
In Part 1 of Immigration Appeals, I discussed the types of decisions that could be appealed (sponsorship, removal and so forth).
However, there are only certain grounds on which you can appeal your decision. A “ground” is a basis for your appeal and your reasons why the decision was not correct. You can not appeal a Citizenship and Immigration Canada decision just because you do not like it – you have a specific ground on which to ask for the decision to be re-considered or overturned.
Error in fact
A ground of appeal can be that the visa officer made a factual error when assessing your file. For example, the visa officer made a finding that you were not married at the time of application, but in fact you were.
An error in fact means the visa officer made a finding that is clearly contrary to the facts at the time he or she made the decision.
Error in law
Another ground of appeal is that the visa officer made an error in applying the law to your case. For example, if a visa officer found that cohabitation for one year was not sufficient to show a common law relationship (all things being equal), that would be an error in law, as the legislation states that one year of cohabitation does in fact create a common law relationship eligible for sponsorship.
An error in law requires that the visa officer does not apply (or mis-applies) a legislative or policy requirement at the time he or she made the decision.
Breach of natural justice
This is a more complex area. There are a number of common law rules that ensure natural justice is carried out in a decision. I won’t go into this in detail as it is a very lengthy and complicated area of the law.
Generally speaking, an applicant has a right to respond to issues or questions about his or file, that the decision maker not be biased, and that the decision maker decides the file on the facts and not based on other factors. There are other factors, and there are exceptions as well.
What happens if you win an appeal?
The Immigration Appeal Division can allow an appeal and make a new decision. However, they typically set aside a decision and send the file back to Citizenship and Immigration Canada to consider the decision again with reference to the appeal decision.
If you are planning an appeal it is essential you contact a Canada immigration lawyer before proceeding.