I was recently at the Immigration Appeal Division to deal with a negative residency determination made against my client. I wanted to provide an overview regarding the residency appeal procedure. After the appellant files an appeal against a negative residency appeal with the IRB they receive the Appeal Record. The hearing is then scheduled. In such appeals the appellant will receive a notice to appear indicating the address of the Immigration and Refugee Board (here in Calgary, at Suite 201-225 Manning Road NE). Such hearings are typically scheduled for two hours. The opposing party, the Minister, is represented by the hearings officer. Permanent Residents face a negative residency determination and such appeals when they don’t comply with the residency obligation (s.28 of the IRPA). The first step of course is to seek exemption from the requirement and put your best foot forward to the responsible, however, if a negative determination has been made, then the PR has the right to seek relief at the IAD. Such matters are not a foregone conclusion. As they say, however, the devil is in the details, and if residency appeals were based solely on the fact of non-compliance or shortfall in terms of the days of residency, then there would be little point to such appeals.
The hearing begins with the Immigration Appeal Division Member entering and confirming that we all have the same documents. In such cases, we are to provide our disclosure some 20 days in advance. After confirming that we all have the same documents, the appellant will be asked to stand, raise their right hand, and swear or affirm to tell the truth during the hearing. I then begin by asking the appellant questions, and the purpose of any question that I ask and the answer that I am looking for is to support the so-called Ribic and Chieu Factors. These are factors that the board commonly looks to. They include the degree of the non-compliance; the reason for the non-compliance; the degree of establishment in Canada; the affect or hardship that would result if relief is not granted; the best interests for any children that are engaged. The humanitarian and compassionate or equitable powers of the Immigration Appeal Division are rooted in s.67(1)(c) and can also include or discuss all the circumstances or, in essence, the circumstances that have necessitated the request for relief from the harsh or technical operation of the law.
These appeals are fact driven. Each appeal is different and questions and the approach need to take that fact into account. Minister’s counsel will cross-examine and test credibility and the plausibility of certain answers. The IAD member may well ask questions. However, the Board Member should ask clarifying questions and not to act as a stand-in for the Hearings and Appeals Officer from CBSA. If there is a question or an answer that is not quite clear, the Board Member may well ask a follow-up question. In cross, the appellant may be, for example, challenged on information that does not accord perhaps or may be deemed to be implausible or contradictory. A prior inconsistent statement can be put to the appellant. If there is a witness, then that witness testifies after the appellant is done with direct and cross examination.
The appellant should keep a few things in mind. He or she should listen carefully to the question whether it is a question from their own counsel or a question by the Hearings Officer or the IAD Board Member. They should answer the question that is being asked, not the question that they want to answer. If a question calls for a “yes” or a “no” answer, they should feel free to say “yes” or a “no.” This is important: If you don’t understand a question, ask for it to be re-phrased; d0n’t guess (without advising that you’re guessing) or make up an answer.
At the close or end of questioning, I then give my submissions to the Board Member. The purpose of submissions is not to reiterate or repeat the evidence. I may point to evidence and discuss the answers and the interplay of same with the Ribic and Chieu Factors. I will likely go through the jurisprudence. I will try and find something that is supportive of the arguments that we are advancing. However, as can be imagined, everyone’s circumstances are different. The Hearings Officer will be given an opportunity to respond; I will have the final say.
– Raj Sharma