Appealing Before the Immigration and Refugee Board of Canada

The Immigration and Refugee Board of Canada (IRBC) hears all types of appeals regarding sponsorship of visa or immigration, Removal Order Appeals and Residency Obligation Appeals. They also solve the problems of residents or Foreign Nationals.

The three types of appeals are:

1. Sponsorship Appeals:

In this case, if the highest authorities of Citizenship and Immigration Canada (CIC) have not accepted the offer to sponsor immigration rights to any close family member of other Canadian permanent residents, then the sponsor can appeal to the Immigration Appeal Division (IAD) or the IRBC.

However, a sponsor cannot appeal if the family member has no rights to enter Canada because of any of the following reasons:

• He or she has committed any crime and is under imprisonment
• He or she has violated any of the Human and International Rights
• He or she is a member of any crime agency
• He or she has given the wrong information regarding their relationship with the sponsor.

The sponsor needs to appeal in front of the IAD within thirty (30) days of refusal by the CIC. In some cases, these appeals are resolved through an Alternative Dispute Resolution (ADR) process, but in general, the appeals are heard by a Decision Maker of the IAD according to the IRB tribunal process.

The two parties involved in this process are:

1. The appellant, and
2. Minister Counsel representing the CIC.

This procedure does involve the public and the media and people also get involved and report on proceedings.

When an appeal is accepted but not given a decision, then the CIC will issue the sponsorship application. However, there are cases where the CIC does not accept the application due to other reasons so the sponsor can appeal to the IAD. The Minister Counsel from the CIC or the sponsor can go to Canadian Federal Court to make a review of the decision given by the IRB. In that case, the Federal Court of Canada can dismiss the appeal or return it back to the IAD for another hearing.

2. Removal Order Appeals:

If a permanent resident of Canada is a refugee or foreign national holding a permanent visa and is ordered to be removed from Canada, then an appeal can be lodged to the Immigration Appeal Division (IAD) or the Immigration and Refugee Board of Canada (IRBC).

A person cannot appeal in the following cases:

• A serious offence has been committed and the person is sentenced to prison for six months or more.
• The person is involved in organized crime.
• The individual has disobeyed any rules regarding human and international rights.
• They have been ordered to leave under security reasons.

The person can appeal within thirty (30) days of receiving the removal order from the Canada Border Service Agency (CBSA). The appeal is heard publically by members of the CBSA, as per the tribunal process.

If the appeal is accepted then the removal order is kept aside and the person may stay in Canada. However, if the appeal is dismissed then the removal order will stand and the person can be forced to leave Canada by the CBSA.

In many cases, the IAD may put a stay on the removal order until the time given by the member who is hearing the appeal. In this case the person can fulfil certain conditions by visiting the CBSA office regularly. The IAD can also change the conditions or cancel the person’s stay at any time.

The appellant or Minister’s counsel can apply in Federal Court of Canada for the decision of the removal or stay. The Federal Court can either dismiss the application or return it to the IRD for a re-hearing.

3. Residency Obligation Appeals:

According to the rules of the Immigration and Refugee Protection Act (IRPA), a permanent resident is required to be physically present in Canada for a minimum of 730 days for every five years. The person may lose their permanent resident status if a visa officer at the Citizenship and Immigration Canada (CIC) discovers that he or she is outside of Canada and has not met the residency requirements. The person can appeal to the IAD or the IRBC within two months of the decision of the permanent residence cancellation from the CIC.

If the appellant is outside of Canada, then the CIC must provide him or her with a travel document so that he or she can travel back to Canada. In some instances, the appellant can apply for the travel document to IAD.

The appeal process involves the appellant and the minister’s counsel. The appeal will be heard by a decision maker of the IRB according to the tribunal procedure and is public to the media and the people.

If the appeal is accepted, the CIC will put aside the decision and the person will be granted permanent resident status. However, if the appeal is rejected, then the appellant will lose their permanent resident status and be ordered to leave Canada.

The Minister’s Counsel or appellant can apply to the Federal Court of Canada against the review of their decision. The federal court can either dismiss the appeal or return it to the IAD for a re-hearing.