Making an Appeal to the Immigration Appeal Division – Part 2

Appeals to the Immigration Appeal Division part 2

As discussed in Part 1, you must provide either witnesses or documents to support your case. In all cases, appellants should be prepared to show the IAD that there are sufficient humanitarian and compassionate grounds to allow their appeal.

Regardless of the type of matter at issue, the IAD will consider various humanitarian and compassionate factors. Here are some other factors that the IAD may consider when reaching a decision:

  • The length of time you have lived in Canada (before and after becoming a permanent resident)
  • How established you are in Canada (for example: your assets in Canada; activities and jobs held in Canada; community involvement in Canada)
  • Whether you will suffer any hardship because of losing your permanent resident status
  • The impacts on your family members in Canada if you were to lose your permanent resident status
  • The best interests of any child who will be directly affected by the loss of your permanent resident status
  • The support you have in Canada from family and others in the community

You can submit letters of support from family or friends, identity documents of relevant/affected family members, as well as financial or medical documents. In some cases, you might also need to provide evidence that you would suffer hardship in your home country if you are removed from Canada. This can include evidence of discrimination or instability in your home country.

Once you have gathered your documentation, you must submit them to both the IAD and the Minister at least 20 days before the hearing. This is called disclosure of evidence. You must also specify if you need any accommodations and make the IAD aware of any other witnesses within that same timeframe. This includes requests for an interpreter and detailing the contact information of your potential witnesses.

Removal Order Appeal

You might be issued with a removal order for making a misrepresentation to an immigration official or because of serious criminality. In both these cases you are inadmissible to Canada and can be removed or refused entry. A misrepresentation means giving false, misleading, or incomplete information that can lead to an error in applying the law. Serious criminality is when you are convicted of a crime that has a maximum prison term of at least 10 years or you have been convicted of a crime and sentenced to more than six months in prison.

You will need to prove that you did not misrepresent yourself or you were not convicted of a serious crime. As always, you can show the IAD that there are sufficient humanitarian and compassionate grounds to allow your appeal regardless of your misrepresentation or serious criminality.

You can rely on some of the humanitarian and compassionate factors listed above, however, the IAD may also consider factors specific to your misrepresentation or conviction. For example:

  • How serious was the misrepresentation or crime?
  • How long ago did it happen?
  • Do you feel remorse or understand the impact of your actions?

As stated above, you can rely on documentation or witness testimony to support your case, however, the IAD and the Minister must receive copies of all your documents, witness information, and accommodations at least 20 days before your hearing.

At the hearing, anyone who testifies is considered a witness, this includes the appellant. Testifying will involve answering questions from your counsel or the IAD member. The Minister will also have a chance to question witnesses. This is referred to as cross-examination. At the conclusion of the hearing, you or your counsel can make submissions to the IAD member deciding your appeal. The Minister will also make submissions to explain their position. The IAD member will consider all documentation submitted as well as all witness testimony.

Outcomes of an Appeal

At the conclusion of your appeal hearing, the IAD member can either make a decision right away or reserve their decision. When the case is reserved, the decision will usually be available within 60 days. In both cases, a written decision will be sent to all parties.

If your appeal is allowed then you can either keep your permanent residency status or your removal order has been cancelled and you can stay in Canada. However, if your appeal is dismissed then the loss of your permanent residency status is final or your removal order stays in place and you may be removed from Canada. In some rare cases, your removal order can be put on hold. This “stay” allows you to stay in Canada under certain conditions for a defined period of time. The IAD will make a final decision later to either continue the stay or allow or dismiss your appeal. This is called a reconsideration.

Immigration appeal cases can vary in complexity; however, it is important to consider hiring an experienced legal representative to assist you with your appeal. If you miss any of the mentioned deadlines, it can negatively affect the process and your chance for a successful appeal.