Immigration Appeals

The Immigration Appeal Division hears sponsorship appeals from refused family class applications, residency obligation appeals where a permanent resident is found not to have met the 730-day requirement, and removal order appeals by certain permanent residents and protected persons.

Not every refusal can be appealed. Most temporary resident refusals, including visitor, study and work permit decisions, carry no appeal right, and the route there is judicial review at the Federal Court or a fresh application. Establishing whether an appeal right exists is the first question, and the refusal letter usually says.

The deadlines are short and strictly applied, commonly 30 days from receiving the decision, and they vary by appeal type.

The exact period and the date it starts running should be taken from your decision letter rather than from a general figure. Missing the deadline usually ends the appeal right entirely, and extensions are limited and discretionary. If a decision has just arrived, establishing the deadline is more urgent than deciding the merits.

It depends on whether the refusal was wrong on the evidence or the evidence itself was inadequate.

An appeal is the better route where the decision misapplied the law or misread the material, and it preserves your original filing date. A new application is often better where the refusal was correct on what was submitted and the gap can now be filled. Appeals take considerably longer than fresh applications, so the choice affects timing as much as prospects.

It is an oral hearing before a member of the Immigration Appeal Division, with the Minister represented, where you and your witnesses give evidence and can be questioned.

The member may allow the appeal, dismiss it, or in some cases grant a stay of removal with conditions. Preparation is what determines outcomes: an organized evidence package filed by the deadline, witnesses who can speak to the issues in dispute, and a clear account of the facts the member has to decide.

They allow the IAD to grant relief even where the original decision was legally correct, based on the overall circumstances of the case.

Relevant factors typically include establishment in Canada, family ties and the effect of separation, the best interests of any children directly affected, and hardship if the outcome stands. The best interests of a child must be given real weight where children are involved. This is discretionary relief, so the case has to be built on evidence rather than argued as a matter of entitlement.

It depends on the type of appeal. Filing a removal order appeal generally stays the removal while the appeal is decided, so you may remain in Canada.

Residency obligation appeals filed from outside Canada are different, and a person outside Canada is generally not able to return simply because an appeal is pending, though travel documents may be available in some circumstances. Because the consequences of getting this wrong are immediate, confirm your position before making travel decisions.