Who can appeal to the IAD (subject to 64 and 65)?
Who can appeal to the IAD (subject to 64 and 65)?
The majority of cases at the IAD consider refused members of the family class (where a visa officer has decided that marriage or relationship is not genuine or was entered into for the purposes of immigration) or removal order appeals (where a PR is facing removal on the grounds of criminality) or residency appeals (where an Officer has made a negative residency appeal).
The IAD can also consider humanitarian and compassionate relief in most cases.
The hearing is de novo and the IAD is not bound to the evidence or information that led to the removal order or PR visa refusal or a negative residency determination. The IAD has broad discretion to grant “special relief” on humanitarian and compassionate grounds and is afforded significant deference to its determinations.
In exercising this discretion, the IAD will have regard to a number of factors including:
The seriousness of the offence leading to the removal order;
|Offences, misrepresentation, and non-compliance fall upon a spectrum; the more egregious the triggering event, the more and/or more compelling the need for countervailing H&Cs to succeed at the appeal.|
|The possibility of rehabilitation/remorse||A factor that is addressed for removal order appeals arising from criminality. Professional reports are often used to address rehabilitation and recidivism. In the misrepresentation context, the IAD may look to whether there is credible expression of remorse. Credible remorse requires the appellant to show insight and a degree of appreciation as to the impact on others/the victims and the system and not just the negative consequences on themselves or their own family.|
|The length of time spent, and the degree to which the individual facing removal is established, in Canada||Establishment is more than simply time in Canada. Evidence of education, employment, assets in Canada is regularly provided in most appeals to the IAD. Establishment can be discounted if it was the consequence of misrepresentation.|
|The family and community support available to the individual facing removal||This is a factor that arises in particular for removal order/misrepresentation appeals. Family/friends/community members can be called as witnesses; appear in-person to show their support; and/or provide letters of support.|
|The family in Canada and the dislocation to the family that removal would cause||The person concerned should address family members in Canada; their circumstances here; and how removal would impact them. Family members can be called as witnesses; they may appear in-person to show their support; and/or provide detailed letters outlining the impact of removal.|
|The degree of hardship that would be caused to the individual facing removal to his country of nationality.||The jurisdiction of the IAD extends to considering potential future hardship; the onus is on the person concerned to establish a likely country of removal and where that burden has been met, the IAD will be obligated to consider potential hardship; where it is not established and the Minister has not selected a country of removal, the IAD will be unable to assess foreign hardship, and this is not an error. In order to not assess foreign hardship, the IAD must make an explicit finding that no likely country of removal has been established.|
Appeal and Hearing Procedure
A Notice of Appeal must be filed at the closest regional office within the respective appeal period. The Board will acknowledge receipt and the Minister will prepare the Appeal Record. In the case of a removal order appeal, this will comprise of the materials before the Immigration Division. In the case of a sponsorship refusal, this Record will be the visa office file. In the case of an appeal arising from a negative residency determination, the Record will be either material from the POE or the visa office.
Appeals at the IAD are adversarial; the Minister in removal order appeals, sponsorship refusals, and negative residency determinations is represented by a Canada Border Service Agency (CBSA) hearings officer. The Minister can appeal against a decision by the Immigration Division not to issue a removal order. In this event, the Minister becomes the Appellant.
Alternative Dispute Resolution or ADR
The IAD may schedule an Alternative Dispute Resolution or ADR hearing20; while attempting to resolve without a hearing is a laudable goal, the ADR is heavily dependent on the participation and buy-in by the Minister/Respondent. Each Hearings Officer brings their own personal perspective. Some are unable to see “the big picture”; some can appropriately balance program integrity with administrative efficiency.
The IAD constitutes an important safeguard against removal and gives effect to the objective of family reunification. It may be your last or best shot to prevent removal or bring your family members to Canada.
The lawyers at Stewart Sharma Harsanyi know that each case must be prepared assiduously and have extensive experience before the IAD.