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Canadian Immigration Appeals and Refusals
You Have Options
Canada’s immigration laws allow appeals for refusals which apply in the cases of Sponsorship, Removals from Canada, and Non-Compliance with Residency Obligations.
Exploring the Immigration Appeal Process
Who Has the right to Appeal?
In Canada, the right to appeal immigration decisions is primarily granted to permanent residents. However, in some limited situations, foreign nationals may also have the right to appeal, particularly in cases involving the issuance of removal orders.
A permanent resident is authorized to live in Canada indefinitely and may later apply for Canadian citizenship, provided they meet the necessary criteria. In contrast, a foreign national is an individual from another country who is neither a Canadian citizen nor a permanent resident. For this information, we will focus on appeals by permanent residents.
What Kinds of Decisions Can Be Appealed?
Permanent residents have the right to Canadian immigration appeals under specific circumstances, which include:
- Sponsors wishing to bring family members to Canada can appeal if their sponsorship applications have been refused by Immigration, Refugee and Citizenship Canada (IRCC).
- Permanent residents who have not met their residency obligation, meaning they have not resided in Canada for at least 730 days within five years, can appeal that finding.
- Permanent residents facing removal orders have the right to appeal these orders.
Who Makes Decisions on Appeal?
Canadian Immigration appeals made by permanent residents are heard by the Immigration Division (ID) and the Immigration Appeals Division (IAD) of the Immigration Refugee Board (IRB).
The IAD and ID are administrative tribunals that follow a process similar to a court, albeit less formal. The individuals responsible for hearing and deciding these cases are called "members." Members of the IAD and ID are appointed by the Government of Canada and are expected to maintain impartiality throughout the proceedings
Family Sponsorship Appeals
Suppose you are a Canadian citizen or a permanent resident, and your application to sponsor a close family member's immigration to Canada has been denied. In that case, you have the opportunity to appeal to the IAD.
Common reasons Canadian immigration appeals for sponsorship application refusals include:
- If you are sponsoring your spouse, and immigration authorities suspect that the marriage was entered into solely to immigrate to Canada or that the marriage lacks authenticity.
- If you are sponsoring your parents and do not meet the minimum income requirement to serve as a sponsor.
- If you are sponsoring your spouse or parents, and immigration authorities believe that your family members will be unable to support themselves and may rely on social assistance upon their arrival in Canada.
- If your family member has a specific medical condition that immigration authorities believe will place an excessive demand on Canadian society.
However, please note that there are specific situations in which you cannot appeal if your family member has been deemed inadmissible due to:
- Committing a serious criminal offence is punishable in Canada by a term of imprisonment of 6 months or more.
- Having a foreign conviction or involvement in a criminal act carrying a maximum sentence of 10 years or more under Canadian law.
- Involvement in organized crime.
- Security-related concerns.
- Violations of human or international rights.
Misrepresentation (except for cases where the person is your spouse, common-law partner, or child).
Remember, understanding the nuances of immigration law can be complicated, and professional guidance can make a significant difference in your appeal process. Feel free to contact us for further assistance.
Your Permanent Resident obligations
Residence Obligation Appeals
Under the Immigration and Refugee Protection Act (IRPA), permanent residents must be physically present in Canada for at least 730 days every five years. Please meet this residency requirement while residing outside of Canada to ensure your permanent resident status is maintained.
If a visa office determines that you still need to meet this requirement, you can appeal this decision to the IAD. Initiating this appeal within 60 days of receiving the decision letter is essential.
In some situations, you may obtain a travel document to enter Canada for the appeal hearing. However, if you are absent in Canada, the hearing can be conducted via telephone and video conferencing.
If your Canadian immigration appeal is successful, you will retain your permanent resident status. Conversely, if the appeal is dismissed, you risk losing your permanent resident status. When you are in Canada, the IAD may order your removal.
We understand that these matters can be complex and emotionally charged. Please do not hesitate to contact us if you require assistance or have further questions about your case.
Removal Order From the Immigration Division (ID)
Removal Order Appeals
Removal From Canada – There are three main types.
If you've been issued a Removal Order, it's crucial to understand the implications. A Removal Order means you're required to leave Canada promptly. The timing of its enforcement varies based on your circumstances and the type of order you've received.
There are three main types of Removal Orders: Departure Orders, Exclusion Orders, and Deportation Orders. Each has its requirements and consequences.
- Departure Order: This order necessitates leaving Canada within 30 days of its effective date. Confirming your departure with the Canada Border Services Agency (CBSA) at your exit port is essential. Failing to leave within the stipulated timeframe or confirm your departure converts the Departure Order into a Deportation Order.
- Exclusion Order: If you receive an Exclusion Order, you're barred from returning to Canada for a specific period, typically one year. This period may extend to five years, depending on the circumstances, primarily if the order is related to misrepresentation.
- Deportation Order: A Deportation Order permanently prohibits your return to Canada unless you obtain an Authorization to Return to Canada (ARC). Additionally, if the CBSA covered your removal costs, repayment is required before re-entry eligibility.
For detailed guidance on returning to Canada or appealing a Removal Order, the Immigration and Refugee Board of Canada (IRB) and the Federal Court of Canada are valuable resources.
Refugee claimants should note that the status of their Removal Order is contingent upon the outcome of their claim. If accepted, the order is voided; if rejected, it becomes enforceable.
It's crucial to comply with a Removal Order promptly. Failure to do so may result in legal consequences, including arrest and detention by the CBSA.
Delays in enforcement can occur for various reasons, such as ongoing legal proceedings, issues with travel documents, identity verification challenges, or administrative measures like Administrative Deferral of Removals (ADR) or Temporary Suspension of Removals (TSR).
If you cannot be removed due to ADR or TSR, you might be eligible to apply for a work permit or study permit.
Humanitarian and compassionate grounds (H&C)
H&C Application
The Humanitarian and Compassionate Permanent Residence application (H&C) is a pathway to permanent residency for people already in Canada. This application requests an exception to the immigration laws requiring applicants to be outside the country as an alternative for people without valid immigration status or eligibility to apply for permanent residency through other channels.
An applicant must provide compelling reasons to stay in Canada.
Any person living in Canada without valid immigration status can apply for permanent residency on humanitarian and compassionate grounds —for example, someone with an expired visa or whose refugee claim was denied.
However, some criteria must be met. An applicant must be able to demonstrate some of the following:
- You are established or settled in Canada with social ties to the country and community.
- You have children or dependents living with you in Canada who would be negatively affected if you leave Canada.
- Do you have a family relation with Canadian citizenship or permanent residency?
- You have employment in Canada (with or without a valid work permit).
- You have completed your education in Canada.
- You have done volunteer work in Canada.
- You are proficient in English or French.
- Do you have property or financial assets in Canada?
- You have health concerns (physical or mental).
- Returning to your home country would cause excessive hardship for you (far beyond cost and convenience).
You cannot apply for an H&C if any of the following applies to you:
- You are awaiting a decision on your refugee claim.
- Your refugee claim was denied within the past 12 months (unless you have a life-threatening medical condition or you have a dependent child who a return to your home country would harm)
- You’ve withdrawn a refugee claim within the past 12 months.
- Do you want permanent resident status outside of Canada?
- You’ve applied for temporary residency.
- You were deemed a Designated Foreign National within the past five years.
If you apply under any of these circumstances, your application will be denied. Immigration officers look at various factors to decide on your H&C application, but these are the three key factors:
- Have you established yourself in Canada and made it your home?
- Is staying in Canada in the best interests of your child or dependents?
- Would you experience excessive hardship if you had to leave Canada?
In addition to those factors, you will need to prove your identity.
Establishment in Canada
How can you prove that you have made Canada your home? You must show that you’re closely connected to other Canadians and have established a community for yourself here. The more evidence you can provide, the better.
Documents that can help you prove your establishment in Canada may include letters from family members, friends, neighbours, employers, coworkers, classmates, teachers, community leaders, ministers, and anyone else you’re connected with.
Additionally, you can provide documentation that shows:
- Employment history
- Education or training you took in Canada, including English classes
- Volunteer work
- Membership and involvement with religious and community organizations
BEst Interests of a Child
Immigration officers will evaluate the best interests of your child or other dependents and how they would be affected by removal from Canada. You can provide supporting documents to prove that staying in Canada is in your child’s best interests. These might include:
- Letters from the child or the child’s teachers and friends
- Report cards, awards, school certificates
- Official medical reports
- Proof of the child’s community involvement, such as after-school sports, music, etc.
Hardship
A significant factor in the officer’s decision is the potential severe hardship you might face if forced to leave Canada. To prove that this would be the case, you might include documents that show things like:
- Proof of how long you’ve been in Canada, such as a stamped passport, utility bills, pay stubs, or lease and rental agreements
- Official medical reports and details about how your home country cannot provide what you need
- Evidence of potential discrimination, harassment, or oppression in your home country
- Evidence of war or severe natural disaster in your home country
Decisions
Immigration officers decide on H&C applications based on the evidence presented. Therefore, the supporting documents you provide with your application are of the utmost importance.
The examples given on this page are just a starting point. There are many other types of documentation you can include with your application. Contact On-Track Immigration and Appeals, who can direct you through the most effective forms of evidence for your situation.