Refused Applications & Delayed Processing
We help resolve refused applications and delayed processing on all types of Canadian Immigration, Refugee, and Citizenship files.
If an application for temporary or permanent residence or Canadian citizenship has been refused or in circumstances where other decisions were made by immigration authorities, there is almost always a pathway to challenge that decision. The pathway may lead to the Federal Court, with an application for Leave and Judicial Review, or to the Immigration Appeal Division (IAD). It may also be possible to seek reconsideration of the decision.
If a decision has not been made, and processing is taking longer than projected or expected timelines, it may also be possible to request ‘Mandamus’. This is a request to the Federal Court of Canada for an Order to compel the processing of a delayed application.
We handle all matters at the Immigration Appeal Division of the Immigration and Refugee Board of Canada.
The Immigration Appeal Division is an independent tribunal that can review and overturn negative visa office decisions or removal orders in a limited subset of cases. It has jurisdiction to consider the following types of appeals:
1) Appeals of refused sponsorship applications of members of the family class (submitted overseas, not though the in-Canada class);
2) Appeals of a removal order by permanent residents, foreign nationals who hold permanent resident visas, and protected persons, including Convention Refugees (unless a person is inadmissible on grounds of serious criminality outside Canada, security, violation of human or international rights, or organized criminality; or if they are inadmissible for serious criminality inside Canada and they received a sentence of 6 months or more);
3) Residency obligation appeals by permanent residents; and
4) Minister’s appeal against any admissibility decision by the Immigration Division.
In many cases, the Immigration Appeal Division has equitable jurisdiction, which means it can allow an appeal where there are sufficient humanitarian and compassionate grounds to warrant special relief in light of all the circumstances of the case, taking into account the best interests of a child directly affected by the decision (other than in an appeal by the Minister or sponsorship refusals where a relationship is found not to be genuine or eligible).
Alternative Dispute Resolution
Once a Notice of Appeal has been filed, the Immigration Appeal Division (IAD) may contact you about participating in an Alternative Dispute Resolution (ADR) conference. In the immigration appeal context, ADR is a great opportunity to try and resolve the appeal in a more informal and non-confrontational environment, without the need for a formal hearing. Additionally, appeals dealt with through ADR are resolved much faster than those which require a formal hearing.
If a file is proposed for the ADR process, the participants will be given a conference date. Any documentation must be filed no later than ten days before the conference.
In Vancouver, ADR conferences take place in a small meeting room at the Immigration and Refugee Board and are usually scheduled for one hour. At the meeting, an employee of the IAD will act as a Dispute Resolution Officer, and will encourage the parties to come to an agreement as to how the appeal should be resolved.
Due to its informal nature, the only participants in the process are the Appellant, the Appellant’s counsel, a representative from Canada Border Services Agency (CBSA) or Immigration, Refugees and Citizenship Canada (IRCC) and the Dispute Resolution Officer.
In the sponsorship appeal context, the sponsor is the Appellant and the family member who was being sponsored is unable to participate in the process directly. However, access to ADR is not limited to family sponsorship appeals and may be offered in cases where permanent residents or permanent resident visa holders have been found inadmissible for misrepresentation, criminality or for failing to meet residency obligations.
If an agreement between the parties is reached, it must then be approved by a Member of the IAD. In the event that the appeal cannot be resolved at the ADR stage, a formal appeal hearing will be scheduled. None of the statements, documentation or other information given at the ADR will be disclosed at the formal hearing – the entire ADR process remains confidential.
In citizenship and immigration cases, Applicants to the Federal Court do not generally have an automatic right to have their case heard by a judge – they must apply for the leave or permission of the Court to have a hearing. This means that an Applicant must first ask the Court to consider their written arguments and if a judge determines that there is a “fairly arguable case” the decision will be judicially reviewed.
Asking for leave is a four stage process:
- Notice – Depending on where the decision was made, an Applicant has either 15 days (for decisions made in Canada) or 60 days (for decisions made outside Canada) to file a Notice of Application for Leave and Judicial Review with the Federal Court registry.
- Applicant’s Record – Within 30 days of filing the Notice, an Applicant’s Record must also be filed. This record includes such things as a copy of the negative decision, written arguments as to why leave should be granted and any evidence that the Applicant wishes to rely upon. This Applicant’s Record needs to be served on the Respondent (the Department of Justice) and filed with the Court.
- Respondent’s Record – Within 30 days of receiving the Applicant’s Record, the Respondent must file a Respondent’s Record, including their arguments as to why leave should not be granted in the case.
- Reply – Within 10 days of receiving the Respondent’s Record, the Applicant has the opportunity to file further arguments in the form of a Reply.
Once all of these documents have been properly served and filed, a judge of the Federal Court will consider the application for leave. This entire stage of the process is done on paper and no Court appearances are generally required. It may be several months before a decision is made.
If leave is granted, the Court will set out all of the deadlines for filing the next set of required documents, including any additional affidavits and written arguments. The Court will also set a date for oral arguments to be made by counsel in front of a judge.
If leave is granted, the case will be “judicially reviewed” by the Court. A judicial review is different than a traditional appeal. The Court cannot substitute its own decision in the place of the decision made by the immigration officer or the Immigration and Refugee Board. Instead, the Court will send the case back to Immigration, Refugees and Citizenship Canada (or other relevant decision maker) to have a different individual make a new decision in the case.
It is possible that a judge will make a decision on the same day as the judicial review. However, it is more likely that the decision will come in the days, weeks or months following the oral hearing.
A Canadian citizen or permanent resident whose application to sponsor a family member is refused may usually appeal the decision to the Immigration Appeal Division.
Mandamus is a remedy that can be sought from the Federal Court when a government decision maker refuses to act or make a decision when it has the legal authority and duty to do so. Mandamus can be used in cases where immigration or citizenship applications have been significantly delayed without justification, or where authorities outright refuse to make a decision.