Challenge a Refused Application

Federal Court of Canada

Decisions made by immigration officials can usually be challenged (appealed) at the Federal Court (of Canada). Common examples are refusal of Visas and PR applications under the CEC, FSW, Refugee, PRRA, and other categories. Some other decisions must be first appealed at the Immigration Appeal Division (IAD), but if unsuccessful IAD decisions can then be appealed at Federal Court.

At the Federal Court a judge will examine the decision in a process called Judicial Review. This is a highly formal process with strict deadlines, and begins with written submissions asking for permission (“Leave”) to bring the decision before a judge. If Leave is granted, the next step is a hearing in a courtroom.

If the result at the Federal Court is unsuccessful, the next step is to appeal at the Federal Court of Appeal (if during the result a judge certified a “question of general importance”). These decisions in turn can only be appealed at the Supreme Court of Canada.

Spouse/Common-Law/Conjugal Partner/Family Sponsorship Appeals

If Permanent Residence application as a member of the family class is refused, the decision can be appealed at the Immigration Appeal Division (IAD).

The IAD may allow the appeal on legal grounds and/or consider humanitarian and compassionate factors. If the IAD allows an appeal, the application will return to CIC to determine if the applicant otherwise qualifies for Permanent Residence.

As described in the “Federal Court” section, the decision of the IAD may be appealed through Judicial Review at the Federal Court.

Deportation Appeals

In Canada, Permanent Residents can lose their status and deported if they have breached the terms of their status. A common example, is when that person is convicted of a certain crime(s), and can be deported (even if they have a job and family in Canada). Usually that person can appeal at the Immigration Appeal Division (IAD), if the sentence is less than 2 years (otherwise there is no such right to a hearing and an immigration officer will decide).

The IAD can consider all of the circumstances of the case, and allow that person to remain in Canada. The IAD can consider ties to the country, such as family in Canada, circumstances of the crime, etc.

Admissibility Hearings

At the airport or border, if an immigration officer believes a person is inadmissible (for example because of a previous criminal conviction) that person may be denied entry to Canada without a hearing.

However, if that person is a Permanent Resident or if the issues are complicated, the admissibility of that person will be made at a hearing called an Admissibility Hearing at the Immigration and Refugee Board. During this hearing, a member of the board will hear arguments and evidence presented by that person (usually represented by a lawyer) and the immigration officer (represented by the government lawyer) when making their decision.

Detention Review Hearings

An “immigration hold” is used by CIC to keep people in custody for future interviews and hearings, or to make sure they attend deportation proceedings. People on immigration hold should be informed as to why they are being detained.

Reasons for detention include: Interview regarding your arrival in Canada, Loss of Status in Canada or, Criminal Activity or violation of the Immigration and Refugee Protection Act

Release can occur where an immigration officer decides detention is no longer needed, it is ordered by a member of the Immigration and Refugee Board.

Once detained, a review of the reasons for detention must occur within 48 hours, but often takes longer for administrative reasons. This is known as a “Detention Review”. If a person is not released, after 7 days another hearing will occur. After this, detention reviews will be held every 30 days.

If a person is released and violates conditions of their release, they may be further detained and any bonds posted may be kept by the government.