The types of litigation that may arise between individuals and the immigration authorities may be classified as appeals and hearings. Appeals refers to the process of challenging decisions of the immigration authorities at the Immigration and Refugee Board or before the Federal Court. Hearings refers to matters that are generally initiated by the immigration authorities with respect to an individual, such as admissibility hearings and detention reviews. The different types of appeals and hearings are:

1. Appeals to the Immigration and Refugee Board
2. Judicial Review before the Federal Court
3. Admissibility hearings
4. Detention Reviews

A. Appeals to the Immigration and Refugee Board

Where a negative decision by the immigration authorities directly affects permanent residents or those who have been determined to be refugees, there may be recourse by way of appeal to the Immigration Appeal Division of the Immigration and Refugee Board. These instances include:

1. Appeals by sponsors. In situations where a Canadian citizen or permanent resident has attempted to sponsor a family member and the application was rejected by the Immigration authorities, an appeal is available.
   
2. Appeals by permanent residents. In situations where a permanent resident has been found to be inadmissible and is ordered removed from Canada, an appeal may be available.
3. Appeals by refugees. In situations where a person who has been granted refugee protection has been found to be inadmissible and is ordered removed from Canada, an appeal may be available.
4. Residency appeals. In a situation where a permanent resident who is overseas is determined not to have fulfilled the residency requirement, an appeal can be made.

Usually an appeal must be made within 30 days of the negative decision so in these situations it is important to act quickly in order to preserve your appeal rights.

If any of these situations applies to you and you are interested in making an appeal, please contact us for further information.

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B. Judicial Review before the Federal Court

Any governmental administrative decision may be challenged by way of Judicial Review in the Federal Court of Canada. As examples, a decision made by an immigration officer overseas to refuse a visa application, or a decision of the Immigration and Refugee Board to refuse a refugee claim, are both reviewable administrative decisions. This means the Court can review the decision to decide whether it was lawfully made. If the Court decides the decision was not properly made, the case will be sent back to the original decision-maker to be re-decided. This type of appeal to the Court must be made within 15 days of a refusal made in Canada, or 60 days of a refusal made outside Canada, so it is important to act promptly to preserve your appeal rights.

If you are interested in applying for judicial review, please contact us for further information.

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C. Admissibility Hearings

Certain categories of foreign nationals, including those who have already obtained temporary resident or permanent resident status, are by law inadmissible to Canada. These include persons with serious criminal convictions, persons who have not complied with the terms and conditions of their admission to Canada, and persons who have misrepresented themselves to the immigration authorities, among several other categories. Those the immigration authorities suspect are inadmissible may be required to attend an admissibility hearing before the Immigration Division of the Immigration and Refugee Board. The purpose of such a hearing is to determine if the person is in fact inadmissible to Canada and should be removed from Canada. At the hearing the person concerned may present evidence to show they are not inadmissible to Canada, and a judge will decide whether the person is or is not inadmissible. A finding that a person is inadmissible to Canada will result in their being issued a removal order. In some instances a removal order may be appealed or it may be challenged by way of judicial review.

If you require further information regarding the admissibility hearing process, please contact us.

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D. Detention Reviews

In some instances the immigration authorities will detain foreign nationals, including temporary residents and permanent residents, if they are of the opinion the person may pose a danger to the public, is unlikely to appear when so required by the immigration authorities, or if the person's true identity is in question. A person detained by the immigration authorities will have the reasons for their detention reviewed by a judge at detention review hearings, where they may present evidence to show why they should be released, and present offers to post bail in order to secure their release. These hearings are conducted by the Immigration Division of the Immigration and Refugee Board. When a person is first detained, they will have a detention review hearing after 48 hours. If they are not released their next hearing will be in 7 days. After that, they will have a detention review hearing every 30 days. At each hearing the judge must review all the evidence and make a fresh determination as to whether or not the person should be released from detention.

If you require further information regarding detention reviews, please contact us.

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Disclaimer: the information included on this website is intended to be of a general nature and does not constitute legal advice.