Right to appeal

A foreign national who holds a permanent resident visa, a permanent resident, or a protected person who has been found to be inadmissible to Canada and received a removal order may appeal to the Immigration Appeal Division (IAD) in limited cases:

  • Certain serious criminality cases – persons who have been convicted in Canada of an offense which is punishable by a maximum sentence of 10 years or more, and for which the person received an actual sentence of less than 6 months imprisonment.
  • Misrepresentation – persons found to have directly or indirectly misrepresented or withheld material facts relating to a relevant immigration matter.

Protected persons would also have access to the IAD in the following cases:

  • Regular criminality – persons convicted of any offence, punishable by less than 10 years imprisonment in Canada, and for which the person was sentenced to 6 months or less.
  • Health grounds – persons with a health condition found likely to endanger public health or public safety.

There is no access to the IAD by persons found to be inadmissible on grounds of security, a violation of human or international rights, organized criminality, or serious criminality that occurred outside Canada or carried a sentence of 6 months or more in Canada. The Minister can appeal against any decision by the Immigration Division not to issue a removal order in these cases.

Appeal process

A Notice of Appeal and a copy of the removal order must be filed at the IAD within 30 days after the person receives the removal order. An Appeal Record is then created by either the Minister or the Immigration Division, depending on the type of decision that is being appealed, which is then sent to the Appellant.

A hearing date is scheduled by the IAD, when the Appellant/counsel will appear before a Member of the IAD to argue their case. Twenty days before the hearing, the parties must submit all relevant documents that they wish to rely on and a list of witnesses. The parties then have 10 days to submit any documents in response to the documents submitted by the other party. In the case of a medical refusal, relevant medical reports must be filed and served 60 days before the hearing.

Preparing an appeal

The Appellant can use witness testimony and physical documentary evidence to prove their case. This can include materials such as support letters from family, friends and colleagues, letters of employment/volunteer work, school certificates and records, photographs or videos, tax assessments, bank statements, pay stubs, title certificates, medical or psychological expert reports, country condition reports and news articles.

Grounds of appeal

The Appellant will need to establish that the admissibility decision was wrong, that a principle of natural justice was violated or that the appeal should be allowed on humanitarian and compassionate grounds. Most removal order appeals are dealt with on humanitarian and compassionate grounds.

The relevant ‘humanitarian and compassionate’ factors that are considered by the IAD include the best interests of any child directly affected by the decision and other factors, as follows:

  • The seriousness of the offence leading to the removal order, where applicable;
  • The possibility of rehabilitation, where applicable;
  • The length of time the Appellant has spent in Canada and the degree of establishment;
  • The Appellant’s family in Canada and the dislocation to the family that the removal of the Appellant would cause;
  • The support available to the Appellant from his or her family and from within the community;
  • The degree of hardship that the Appellant would face in their country of nationality if removed from Canada, if they can be removed.

Appeal outcomes

In deciding an appeal, the IAD may allow or dismiss the appeal outright, or they may impose a stay of removal for a specified period of time, during which time the Appellant must follow specified conditions. This typically includes reporting to Canada Border Services Agency (CBSA), abstaining from criminality, reporting changes of address and updates in personal circumstances, and possible counseling or rehabilitative program attendance, among other things. This stay is similar to a period of probation under criminal law. If the specified conditions are not followed, the IAD may review the stay and vary or cancel it. If the Appellant receives a new criminal conviction which is considered a “serious criminal offence”, the stay is cancelled automatically by operation of law and the appeal is terminated.

At the end of the stay period, the IAD will reconsider whether to allow the appeal. The Appellant must affirm in writing that they have complied with the stay conditions and CBSA will indicate whether they agree that the appeal should be allowed or whether they request another hearing be held. The IAD will then render a final decision on the appeal or schedule a reconsideration hearing. The appeal is not simply automatically allowed at the end of the stay period. The Appellant must stay engaged with the process until their appeal is finally disposed of in this manner.

A negative determination at an IAD hearing results in loss of permanent resident status and/or removal. This decision is final unless an application for leave and judicial review at the Federal Court is successful.