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:
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.