Appeals in Canadian Immigration

Immigration decisions can have life-changing consequences. A refused family sponsorship, a loss of permanent residence, or a removal order can put your future in Canada at risk. Fortunately, Canada’s immigration system allows certain applicants to challenge these decisions through an appeal.

Unlike judicial review, which only examines the fairness and legality of the decision-making process, an appeal allows you to re-argue the merits of your case and often introduce new evidence. Appeals are an essential safeguard that ensure fairness, compassion, and flexibility in Canada’s immigration system.

What is an Immigration Appeal?

An appeal is a legal process where a higher body — usually the Immigration Appeal Division (IAD) or the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB) — reviews a decision to determine whether it should be overturned or modified.

Key differences from judicial review:

• Appeals may consider new evidence that wasn’t part of the original decision.
• In certain cases, appeals can be decided on humanitarian and compassionate (H&C) grounds.
• The tribunal can directly substitute a new decision (e.g., cancelling a removal order or allowing a sponsorship).

Who Can Appeal and When?

Not every immigration decision can be appealed. The right to appeal is limited to situations where the Immigration and Refugee Protection Act (IRPA) expressly provides it.

Examples of Appeal Rights:

1. Family Sponsorship Refusals
• Canadian citizens or permanent residents who sponsor a spouse, partner, parent, or child and receive a refusal may appeal to the IAD.
2. Removal Orders
• Permanent residents and protected persons can appeal a removal order made against them (e.g., due to misrepresentation or certain criminal convictions).
3. Loss of Permanent Residence (Residency Obligation Appeals)
• If a permanent resident is found not to have met the 730-day residency obligation in a five-year period, they may appeal to the IAD.
4. Refugee Claim Refusals
• Most rejected refugee claimants can appeal to the Refugee Appeal Division (RAD), which reviews decisions from the Refugee Protection Division (RPD).

No Right of Appeal in Certain Cases:

• Temporary resident visas (visitors, students, workers).
• Serious inadmissibility (e.g., criminality with a sentence of six months or more, security grounds, organized crime).
• In-land Humanitarian & Compassionate (H&C) refusals.

When no appeal is available, the alternative recourse is usually a judicial review in Federal Court.

How the Appeal Process Works

1. Filing a Notice of Appeal
• Strict deadlines apply:
• 30 days for most IAD appeals (from date of refusal or removal order).
• 60 days for residency obligation appeals made abroad.
• 15 days to file a notice of appeal for refugee decisions to the RAD.
2. Preparation and Disclosure
• The IRB requires appellants to disclose documents and witness lists ahead of the hearing.
3. Hearing
• IAD hearings are formal but less rigid than court trials.
• You may present new documents, oral testimony, and humanitarian considerations (such as hardship to family members).
• RAD reviews may proceed through written submissions, but oral hearings can occur if there are credibility issues.
4. Decision
• The IAD or RAD can:
• Allow the appeal (overturning the refusal or removal order).
• Dismiss the appeal (original decision stands).
• Stay the removal order (put it on hold subject to conditions, such as reporting to CBSA or demonstrating rehabilitation).

Legal Standards and Case Law

Appeals are rooted in both statutory rights under IRPA and fundamental principles of fairness.

• Baker v. Canada (1999): Established that humanitarian factors — like the best interests of children — must be considered in discretionary immigration decisions. This principle strongly influences IAD appeals where H&C arguments are raised.
• Chieu v. Canada (2002 SCC): Confirmed that the IAD has broad discretion to consider humanitarian and compassionate factors in removal order appeals.
• Vavilov (2019): While more central to judicial review, Vavilov’s emphasis on transparent and reasonable decision-making also guides appeal bodies in providing intelligible, justifiable reasons.

Why Appeals Matter

Appeals are particularly powerful because:

• They give applicants a fresh chance to argue their case.
• They allow for the presentation of new evidence and humanitarian factors that may not have been part of the original application.
• In removal cases, they can stop deportation until the appeal is resolved.

For many families, appeals are the only way to keep loved ones together in Canada or prevent separation due to rigid application rules.