Immigration Appeals

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What to do if your Canadian immigration application is refused

  • Appeal before the Immigration Appeal Division (IAD). This applies to sponsorship appeals, residency appeals, and removal order appeals involving Canadian citizens or permanent residents.
  • Apply to the Federal Court for judicial review. This type of appeal applies to all types of immigration refusals, except for those that are appealed to the IAD.
  • If your application was refused due to misunderstood information or some other error on the part of the immigration authorities, you may request reconsideration.
  • If denied a temporary resident visa or study permit, apply again and attach critical items in your application to address the concerns of the immigration authorities.
  • Apply again at the right time. If your application was premature, try again and ensure you meet all the requirements.
  • If your application was denied due to criminality, apply for rehabilitation or a temporary resident permit.
What should I do if my immigration application is refused

Any type of refusal by the immigration authorities may be appealed in court in Canada.

These appeals will be made either to the Federal Court of Canada, or in certain types of cases, to the Immigration Appeal Division.

If your immigration case has been rejected and you wish to know whether you have good chances of success on appeal, please send the decision to our office e-mail: [email protected] Attach a letter or e-mail briefly explaining why you think the decision is incorrect, and give us your return e-mail address. We will review the decision and get back to you to describe your appeal options and chances. There is no fee for this service. All information provided will be kept strictly confidential.

Judicial Review Appeals at the Federal Court

Refused Cases

Any immigration decision may be challenged by way of Judicial Review in the Federal Court of Canada. As examples, a decision made by a visa officer to refuse a skilled worker application, or a decision of a citizenship judge to reject a citizenship application, are both reviewable administrative decisions. This means that the Court can review the decision to decide whether it was lawfully made. Issues the Court will consider include whether the decision-maker acted legally and within jurisdiction, whether the decision was made using a fair procedure, and whether the decision was reasonable in light of the evidence. It is not necessary for the applicant to be in Canada or to appear before the Court in person, the case can be managed entirely by Mr. Jeffery’s office including any appearances at the Court.

If the Court decides that the decision was not properly made, the case will be sent back to be re-decided by a different decision-maker. This type of appeal to the Court must be made within strict deadlines, generally 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.

Delayed Cases – Mandamus

Immigration Appeals While most appeals at the Federal Court level seek to overturn a decision that has already been made, in some instances the appeal is seeking the making of a decision. For example, where the immigration authorities have unreasonably delayed the processing of a visa application, an appeal to the Federal Court can be made requesting that the Court order the immigration authorities to complete the processing of the application immediately. This type of court order is called “mandamus” which is Latin for “we command”. The Federal Court has the authority to order the citizenship and immigration authorities to do anything that they are legally obliged to do but have unreasonably failed to do.

If your citizenship or immigration application has been delayed far beyond normal processing times you may wish to bring an appeal to the Federal Court seeking an order of Mandamus compelling the making of a decision. Matthew Jeffery’s law office has years of experience successfully assisting clients to pursue this remedy.

Appeals to the Immigration Appeal Division

In certain types of immigration cases a negative decision can be appealed to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, which is an independent administrative tribunal. Such appeals are available to those who are citizens or permanent residents of Canada, or persons who have been granted refugee status.

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. The types of cases which can be appealed to the IAD include:

  • Sponsorship Appeals 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 may be made to the IAD within 30 days of receipt of the refusal letter.
  • Residency Appeals In a situation where a permanent resident is determined not to have fulfilled the residency requirement, and has lost their permanent residence as a result, an appeal can be made to the IAD within 60 days of the decision.
  • Removal Order Appeals If a permanent resident has been found to be inadmissible for criminality, misrepresentation, or other immigration offences,and is ordered removed from Canada, an appeal may be made to the IAD within 30 days of receipt of the removal order.

Persons who appeal to the Immigration Appeal Division must attend a hearing, either in person or by teleconference. Appellants will be permitted to present new evidence in support of their case, may personally testify, call witnesses, and be represented by a lawyer.

The IAD will consider whether the negative decision was legally made, and may also consider Humanitarian and Compassionate factors related to the case. If the IAD decides that the decision was wrongly made, or there exist sufficiently compelling Humanitarian and Compassionate factors, it will overturn the original decision and send the case back to be re-decided in accordance with its findings. If the IAD dismisses the appeal, a further appeal of the IAD’s decision may be made to the Federal Court.

The Law Office of Matthew Jeffery has years of experience successfully assisting clients before the Immigration Appeal Division. If you need to appeal a decision of the immigration authorities, please contact us for further information.

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CITIZENSHIP APPEALS

Refused Citizenship Applications

Permanent residents who applied for Canadian citizenship and were rejected can appeal the negative decision of the citizenship authorities to the Federal Court within 30 days. The appeal will proceed as a judicial review, meaning that the court will review the decision and the evidence that was before the decision-maker and will decide whether the decision was reasonable in light of the evidence, procedurally fair, and otherwise made in accordance with the law. If the court finds that the citizenship authorities made a legal error, the court will send the case back to the citizenship authorities to re-decide the application. It is not necessary for the applicant to be in Canada or to appear before the Court in person, the case can be managed entirely by Mr. Jeffery’s office including any appearances at the Court.

Citizenship administration: Judicial review and appeals

When a citizenship application is denied, the applicant may appeal by way of an application for leave and judicial review at the Federal Court. This appeal must be initiated within 30 days of receiving the decision. The process involves two stages.

Stage 1: Application for leave to commence an application for judicial review

The process begins by filing an application to the Federal Court for “leave” which means that the applicant must persuade the court that the appeal has merit and there exists a real issue that the refusal was made erroneously. If the court grants leave the judicial review commences and a hearing will be scheduled. However, if the Federal Court judge denies the application for leave, the application is dismissed and cannot proceed further since the applicant has been denied a judicial review and doesn’t have a right to appeal this decision.

Stage 2: Application for judicial review

If the Federal court grants leave, the application for judicial review will proceed and the court will set a hearing date and give both parties a time frame to prepare. At the hearing the court will listen to the oral arguments from both the applicant’s lawyer and the citizenship department’s lawyer, then will decide the matter. If the judge finds that the citizenship authorities made an error, then the decision will be overturned and the case sent back to the citizenship department to re-decide it. An immigration appeal lawyer Toronto can help the applicant to serve and file their affidavits, prepare strong arguments and attend the hearing to argue the case before a judge.

Who can file an application for judicial review?

The judicial review process is a right of all applicants who have been denied Canadian citizenship as well as those who have been denied citizenship certificates. This application for leave which is filed to the Federal Court will grant permission to seek judicial review which is an oral hearing that is aimed at challenging the decision made by a citizenship judge or a decision maker.

Additionally, the Minister may also file an application for leave to commence an application for judicial review to challenge the decision made by a citizenship judge. If the Minister challenges a decision to issue citizenship to an applicant, then the applicant needs to defend the decision in court by responding to the Minister’s legal arguments, and if necessary, attending a hearing to defend the decision. An experienced immigration lawyer is essential to such a defence.

Appeal to the Federal Court of Appeal

If the case before the Federal Court is unsuccessful, an appeal may be made to the Federal Court of Appeal, but this is only possible when the Federal Court judge certifies that there is a serious question of general importance. The judge will certify and state the serious question of general importance, which arises if the court finds an issue that transcends the interests of the parties and contemplates issues of broad significance. A question of general importance may also arise if the court contemplates issues of general application that are also dispositive of the case. Once the appeal is made, the Federal Court of appeal will rule on the serious question of general importance as well as other aspects of the appeal within the jurisdiction of the court.

Appeal to the Supreme Court of Canada

A decision of the Federal Court of Appeal may be subject to further appeal to the Supreme Court of Canada. An application for leave must be made and may be granted in cases that raise an issue of public importance. Once leave is granted, an appeal is made to the Supreme Court to review any final or other judgment made by the Federal Court of Appeal. The applicant has 60 days after the date of receiving the final judgment of the court of appeal to file the notice of application for leave to appeal with the registrar at the Supreme Court. A qualified immigration appeal lawyer Toronto can provide the legal assistance needed to prepare for all types of appeal.


CITIZENSHIP REVOCATION

Persons who have obtained Canadian citizenship may be subject to revocation proceedings in certain circumstances. The citizenship authorities may revoke a person’s citizenship if the Minister of Citizenship and Immigration is satisfied, on the balance of probabilities, that it was obtained by fraud, or that the person’s permanent residence was obtained by fraud. The Minister may revoke a person’s citizenship if the person is convicted of treason, a terrorism offence, being a traitor, spying, or other security-related offences. The Minister may revoke a person’s citizenship if they served as a member of an armed forces or armed group that was engaged in an armed conflict with Canada. The Minister may not revoke citizenship if it would render the person stateless – i.e., revocation only applies to dual citizens.

Revocation proceedings will be commenced by the citizenship authorities who will provide notice to those concerned and an opportunity to make submissions in their defense. If the citizenship authorities decide to revoke a person’s citizenship, this decision will be appealable by way of judicial review before the Federal Court.

If you are subject to revocation proceedings, please contact us so that we may assess your situation and advise you as to how we can best defend you.

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