The Immigration and Refugee Protection Act (IRPA) provides two levels of review of decisions made under the Act: review by way of statutory appeal to the Immigration Appeal Division and review by the Federal Court. Under section A63 (as limited by section A64 – explained below) sponsors, visa holders, permanent residents and protected persons have a right to appeal certain decisions to the IAD. At the same time, the Minister has the right to appeal to the IAD a decision made by the Immigration Division (ID) at an admissibility hearing [A63(5)]. In all other cases, where no statutory right of appeal exists or where those rights have been exhausted, there is a right to seek judicial review of any decision made under IRPA by filing an application for leave and judicial review to the Federal Court under section A72(1).
Immigration Appeal Division (IAD)
The IAD is an administrative tribunal that reviews decisions made under IRPA. This Division is part of the Immigration and Refugee Board and is completely independent of Citizenship and Immigration Canada.
IAD reviews the following matters:
- refusal of a sponsorship application for members of the family class;
- removal orders made against foreign nationals who hold permanent resident visas;
- removal orders made against permanent residents and protected persons at an examination or admissibility hearing;
- Minister’s appeal of a decision made by a member of the Immigration Division and appeals of overseas decisions on loss of permanent resident status.
Grounds for appeal
The IAD examines cases for possible errors in law, in fact, and mixed law and fact, or for failure to observe a principle of natural justice. It also has the authority to reverse valid decisions on the grounds that there are humanitarian and compassionate considerations that warrant granting special relief under its equitable jurisdiction. It should be noted, however, that if the IAD determines that the applicant is not a member of the family class or that their sponsor is not a sponsor within the meaning of the Regulations, it cannot exercise its equitable jurisdiction to consider humanitarian and compassionate factors [A65].
Humanitarian and compassionate considerations
As noted above, the IAD has an equitable jurisdiction, which allows it to consider factors that may warrant an appeal being allowed despite the fact the decision is valid in law. Section A67(1)(c) states that the IAD must be satisfied that, at the time the appeal is disposed of “. . . taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.”
Factors to be considered by the IAD in appeals of removal orders include:
- the seriousness of the offence leading to the removal order, where applicable;
- the possibility of rehabilitation, where applicable;
- the length of time spent in Canada and the degree to which the appellant is established here;
- the family in Canada and the dislocation to the family that the deportation would cause;
- the support available to the appellant, not only within the family but also within the community;
- the degree of hardship that would be caused to the appellant by their return to their country of nationality, provided that the likely country of removal has been established by the appellant on a balance of probabilities.
When considering an appeal of a family class sponsorship, some of the factors that may be considered by the IAD include:
- whether authorizing the applicant to enter would result in the reunion in Canada of the appellant with close family;
- the strength of the relationship between the applicant and the appellant;
- the degree to which the applicant is established abroad;
- whether an applicant has demonstrated the potential to adapt to Canadian society;
- whether the parties to the application have obligations to one another based on their cultural background;
- whether the applicant is alone in their country;
- the availability of health services to the applicant in Canada and abroad (for refusals based on medical grounds);
- whether there is evidence of rehabilitation or the risk of the applicant reoffending (for refusals based on criminal grounds).
It should be further noted that if a foreign national or permanent resident is determined by an immigration officer or by the Immigration Division to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, they do not have a right to appeal to the IAD.
If a sponsored application for permanent residence is rejected based on a finding of inadmissibility on grounds of misrepresentation, there is no right of appeal. However, this provision does not apply if the foreign national is the sponsor’s spouse, common-law partner or child as per section A64(3).
Judicial reviews by the Federal Court
Anyone seeking the judicial review of a decision must first seek leave of the Court, i.e. permission to have the matter resolved by the Court at an oral hearing. Consequently, judicial review is a two-stage process. The first stage is the leave application that is decided via a paper-review process. If leave for judicial review is denied, the application is dismissed and proceeds no further because there is no right to appeal from this decision. If, however, leave is granted, the proceedings move on to the second stage.
For a decision in a matter arising in Canada, the application for leave and judicial review must be commenced within 15 days after the date on which the person concerned is notified of or otherwise becomes aware of the matter. For a decision in a matter arising outside Canada, the application must be commenced within 60 days after the date on which the person concerned is notified of or otherwise becomes aware of the matter – section A72(2).