APPEALS TO THE FEDERAL COURT

The Federal Court is the court with the ultimate responsibility and power for making sure that decisions made by the Department of Citizenship and Immigration, the Immigration Appeal Division, the Immigration Division, visa officers, and other governmental authorities are in accordance with the applicable laws and regulations. For example, a person who has been refused by a visa officer may wish to appeal that refusal to the Federal Court. These typically include, but are not limited to, a skilled worker, a business (Investor, Entrepreneur), student visa or a work permit applicant whose application for a permanent/temporary residency has been rejected. The Federal Court also hears appeals from rejection of Pre-Removal Risk Assessment (PRRA) applications, Humanitarian & Compassionate (H&C) applications, and citizenship applications. In such cases, the visa officer, the immigration officer, or the citizenship judge, as the case may be, will issue a rejection letter in which s/he explains the reasons for the rejection. It is very important to remember that the rejected person has only a limited number of days (60 or 15 days depending upon location and type of application) within which to initiate the appeal process. The time limitations may vary depending upon certain factors. It is therefore very important to contact a lawyer as soon as possible so as to avoid further complications.

 

When the rejected applicant initiates the appeal procedure, he or she is given 30 days within which s/he must gather all the available evidence, swear an affidavit, and make written legal submissions explaining why s/he thinks the visa officer was wrong. Copies of the arguments and the evidence are then filed with the Federal Court and also given to the lawyer representing the Department of Citizenship and Immigration (Department of Justice). The Government’s lawyer is then given 30 days to file responding arguments and evidence defending the refusal decision. A copy of all the written material filed by both sides is then given to a judge of the Federal Court. The judge will examine the refusal decision, in light of the arguments and evidence put forward by both sides, in order to determine how strong each side’s arguments are. In plain words, the judge looks at the strength of each side’s arguments and evidence to determine whether the refusal decision was based on a legal or factual mistake(s).

If the judge feels that your case is strong enough, s/he will then permit the parties to come to the court to present their oral arguments, in addition to the written material already presented. If the legal or the factual mistake(s) can be clearly shown to the judge, the judge may then set aside the officer’s decision and order another officer to review the file again and make a fresh decision.

The Federal Court also hears appeals from decisions made by the Immigration Appeal Division or the Refugee Division. These typically include spousal sponsorship applicants whose appeal to the Immigration Appeal Division has been rejected/dismissed. They may also include permanent residents facing deportation whose appeal to the IAD on “residency obligation” or “inadmissibility” has been refused by the IAD. Stated more simply, a person whose appeal to the IAD has been rejected may, depending on the circumstances, choose to bring a further appeal to the Federal Court. Another class of people who can appeal their case directly (pending the coming into force of the Refugee Appeal Division) to the Federal Court are failed refugee claimants who are subject to removal order/deportation.

It should also be noted that there are certain decisions of the Immigration Division (ID) the appeal from which goes directly to the Federal Court. Most common among these are decisions of the Immigration Division on detention reviews when the member of the ID decides not to release an individual from detention in Rexdale Centre. 

The above brief summary shows that in all circumstances, appeals to the Federal Court are subject to a very complicated and strict set of legal and evidentiary requirements. Given the legal complexities and the applicable time limits, persons contemplating an appeal are therefore well advised to seek the advice of an experienced lawyer as soon as possible.

To obtain further information and to take advantage of our free half hour initial consultation, please contact our office at (416) 365-9473 .