The Immigration Appeal Division is a quasi-judicial body in Canada that operates within the Immigration and Refugee Board of Canada (IRB). The IAD is responsible for hearing appeals related to immigration matters, particularly those involving permanent residents facing removal orders or individuals seeking refugee protection in Canada.
What cases are heard at the immigration appeal division?
Residency Appeals: The IAD hears appeals from permanent residents who are facing the possibility of losing their status due to not meeting residency obligations.
Sponsorship Appeals: Individuals who have sponsored family members for immigration may appeal decisions related to sponsorship refusals or the sponsorship undertaking.
Removal Order Appeals: The IAD reviews cases of individuals facing removal orders, providing an avenue for appeal before deportation.
Admissibility Appeals: The IAD may hear appeals related to admissibility issues, such as criminality, security concerns, or violations of human or international rights.
The Immigration Appeal Division operates independently, and its members, who are decision-makers, are responsible for reviewing evidence, hearing testimonies, and making decisions on appeals. The goal is to ensure fairness and justice in immigration-related matters, providing individuals with an opportunity to appeal decisions made by immigration authorities.
Key Terminology:
Appellant: The person making the appeal is referred to as the appellant.
Respondent: The Minister seeking the appellant's removal from Canada is known as the respondent. The Minister is represented by a Canada Border Services Agency (CBSA) officer, referred to as the Minister's counsel. The appellant and the Minister are the parties involved in the appeal.
IAD Tribunal Member: The individual who hears the appeal and makes a decision is a member of the Immigration Appeal Division (IAD) tribunal.
Early Resolution Officer (ERO): An IAD employee available to provide information to help the appellant prepare their case. An ERO does not offer legal advice, but they can address questions related to the appeal.
Informal Resolution:
An Early Resolution Officer (ERO) might reach out to you or your legal representative to gather additional information regarding your appeal and engage in discussions about your case. This aims to assess whether your appeal can be settled without the need for an oral hearing.
Alternative Dispute Resolution (ADR):
Your appeal could be slated for an Alternative Dispute Resolution (ADR) conference. ADR is recommended only in suitable cases. It involves an informal meeting where you, the Minister's Counsel, and an ERO convene to discuss the case, clarify issues, and foster agreement on a decision. If your appeal finds resolution during the ADR, a hearing becomes unnecessary. Instead, you will receive a decision confirming the resolution of your case.
Not all appeals find a suitable home in the realm of ADR. The IAD selectively opts for ADR when there is a genuine prospect of resolving the appeal without resorting to a formal hearing.
ADR vs. Formal Hearing:
Role of IAD at ADR Conference: Facilitator, Not Arbiter
The IAD's role in an ADR conference is more that of a facilitator, steering discussions between the appellant and the Minister's counsel with the ultimate aim of reaching an agreement.
This conference serves as an opportunity for the parties to collectively forge a path toward resolution.
Formality and Duration: A Contrasting Canvas
ADR conferences boast a less formal ambiance and a shorter duration, typically spanning about one hour. In contrast, formal hearings are more structured, demanding extended timelines of three hours or more.
What are the outcomes at an ADR?
Positive Recommendation:
If the Minister's counsel recommends in favor of the appellant, an ADR Agreement is crafted, succinctly encapsulating the reasons for allowing the appeal.
The agreement undergoes scrutiny by both parties and upon approval, a final written decision favoring the appellant ensues.
Negative Recommendation:
In cases where the Minister's counsel does not offer a favorable recommendation, the appellant faces a pivotal decision: withdraw the appeal or proceed to a formal hearing.
The Early Resolution Officer (ERO) provides a neutral assessment of the appeal's chances in a formal hearing, elucidating the subsequent hearing process if the appeal proceeds.
While ADR conferences represent an efficient and less formal alternative to traditional hearings, meticulous preparation, a thorough review of appeal documents, and a nuanced understanding of the process are imperative for a successful outcome. The flexibility to opt into or out of ADR, coupled with the confidentiality of discussions, creates an environment conducive to fair proceedings. As clients chart their course through the intricacies of ADR, they find a navigational tool that empowers them to steer their appeals toward swift and just resolutions.
The process to appeal at the IAD
The appeal process involves submitting a Notice of Appeal and providing relevant documentation to support the appeal. There are strict deadlines for filing the Notice, typically within 30 days of receiving the removal order.
Upon receiving the Notice of Appeal, the IAD requests the Minister to provide the information in the sponsorship file, forming the appeal record. The appellant must read the appeal record, which contains reasons for the removal order and pertinent details.
The appellant must disclose evidence within 60 days of receiving the appeal record. This involves providing documents to support the case.
Late disclosure may not be accepted without the tribunal's approval. The member will assess factors such as relevance, timeliness, and reasons for the delay.
If no disclosure is provided or if the appellant chooses not to provide documents, the IAD may dismiss or declare the appeal abandoned, resulting in no change to the original decision.
Appellants can submit documents in response to evidence provided by another party, even after the disclosure due date, but no later than 30 days before the hearing. The member will evaluate the document's relevance.
Who cannot appeal at the IAD?
Individuals falling into the specified categories are ineligible to appeal a removal order in Canada if they have been found inadmissible for the following reasons:
Conviction of a crime in Canada with a sentence of six months or more in a Canadian prison.
Committing or being convicted of a crime outside Canada would be punished in Canada by a maximum prison term of ten years or more.
Involvement in organized crime, such as smuggling people or laundering money.
Posing a security threat, such as attempting to overthrow a government or participating in terrorism.
Violating human or international rights, including committing war crimes.
Setting your hearing at the Immigration Appeal Division
If an informal resolution is not possible, the Immigration Appeal Division will schedule an oral hearing, contacting you or your counsel to set a date. Once the date is proposed, you have two days to confirm availability. A Notice to Appear follows, specifying the date, time, and whether the hearing is virtual, in person, or by telephone. In-person hearings occur nationwide, with virtual participation options. If unable to attend, contacting the IAD promptly is crucial for requesting a postponement, granted only in exceptional circumstances. The request, stating your appeal file number, should be sent to the IAD, explaining the reasons and listing alternative dates. Providing the Minister's counsel with a copy is necessary, and the request must reach the IAD at least 3 working days before the original hearing. If denied, attending the scheduled hearing is mandatory, as failure to do so may result in dismissal or abandonment of the appeal. Late requests may be addressed at the beginning of the hearing, but preparation is essential in case the request is denied.
How to Prepare for your Immigration Appeal Division Hearing
Prepare for your immigration appeal by providing the necessary disclosures. Submission of documents, witness information, and interpretation needs, to both the Immigration Appeal Division (IAD) and the Minister’s counsel is crucial and must be done at least 20 days before the hearing.
List all witnesses, including experts must be sent to the IAD at least 30 days before the hearing, specifying their details and potential language interpretation needs. Expert witnesses must provide a signed report summarizing their qualifications and intended testimony, submitted in either French or English to both the IAD and the Minister's Counsel.
Possible Outcomes at the Immigration Appeal Division:
If Your Appeal is Allowed:
The removal order is annulled, permitting you to remain in Canada.
If you hold permanent resident status, it remains unaffected.
If you possess only a permanent resident visa, it is advisable to contact Immigration, Refugees, and Citizenship Canada for further guidance.
If Your Appeal is Stayed:
Often applied in criminality cases, a stay of a removal order temporarily halts its enforcement.
Staying in Canada is contingent on adhering to specified conditions, such as refraining from new criminal offenses, maintaining a valid passport or travel document, and reporting to the Canada Border Services Agency on the designated day.
The IAD may review stay conditions at any time. Failure to comply may result in the cancellation of the stay and dismissal of your appeal. Conversely, adherence to conditions until the end of the stay allows the IAD to reconsider your appeal, potentially allowing it.
If Your Appeal is Dismissed:
The removal order becomes effective, enabling the Canada Border Services Agency (CBSA) to initiate your removal from Canada.
Your appeal is concluded at the IAD, prompting consideration of legal advice to explore potential options.
Seeking a Judicial Review by the Federal Court
If you disagree with the IAD's decision, you have the option to seek a judicial review from the Federal Court. This involves challenging the IAD's decision and can be initiated by both the appellant and the Minister's counsel.
It is crucial to act promptly, as the application for a judicial review should be submitted within 15 days of receiving notification of the IAD's decision.
Why hire a lawyer from AKM Law as your Immigration appeal lawyer?
Choosing AKM Law for your immigration appeal provides a strategic advantage due to the firm's specialized expertise, proven track record, and comprehensive understanding of Canadian immigration laws. The legal team's personalized approach, proactive communication, and client-centric philosophy ensure that each appeal is addressed with tailored strategies, fostering a collaborative and transparent relationship with clients. AKM Law's supportive legal team, coupled with multilingual capabilities, enhances the overall experience, acknowledging the unique challenges of immigration appeals and providing effective guidance throughout the process.
