Immigration Appeals

Not every IRCC refusal leaves you with only a reapplication or a trip to the Federal Court. In some categories you have a statutory right of appeal, and when you have it, it is the strongest remedy available to you anywhere in the system.

An immigration appeal at the Immigration Appeal Division is not a paper review of the officer’s file. It is a fresh hearing. You can file new evidence the visa officer never saw. You and your sponsor can testify. The Division can allow your appeal outright and order the application processed, and in many cases it can grant relief on humanitarian and compassionate grounds even where the refusal was technically correct in law.

Nothing else in Canadian immigration gives you that much room. The problem is that appeal deadlines are short, many people do not realize they have a right of appeal at all, and by the time they find out the window has closed.

Your immigration appeal rights depend on the category of your application, not on how unfair the refusal feels. These decisions generally carry a right of appeal:

• Family sponsorship refusals
  your application to sponsor a spouse, partner, child, parent or grandparent was refused, and you as the sponsor appeal that refusal.
• Residency obligation decisions
  you are a permanent resident found not to have met the physical presence requirement, at a port of entry or on a PR card application.
• Removal orders
  a removal order issued against a permanent resident or a person holding a permanent resident visa.
• Refugee claims
  a negative decision from the Refugee Protection Division, appealed to the Refugee Appeal Division, subject to eligibility.
• Certain decisions on returning resident permits and related matters.

Here is the part that catches people out. Most temporary resident refusals carry no right of appeal at all. If your visitor visa, study permit, work permit or eTA was refused, there is no Immigration Appeal Division for you. Your routes are a reconsideration request, a stronger reapplication, or judicial review at the Federal Court.

If you are not sure which category you fall into, send us the refusal letter. That question takes us minutes to answer and it determines everything that follows.

Appeal deadlines run from the day the decision reached you, and the Division is strict about them.

People often ask whether they should go to the Federal Court instead of filing an immigration appeal. If you have a right of appeal, the answer is almost always no, and it is worth understanding why.

• New evidence is allowed
  the Division hears your case fresh. At the Federal Court the record is frozen as it was in front of the visa officer, and you cannot fix an evidentiary gap.
• The Division can decide the matter
  it can allow your appeal and send the application back to be processed. The Federal Court can only set the refusal aside and order a different officer to look again.
• You get an oral hearing
  you and your sponsor give evidence and answer questions. A refusal built on a paper impression of your relationship often does not survive live testimony.
• Humanitarian and compassionate discretion is available
  the Division can grant relief on H and C grounds even where the refusal was legally correct. The Federal Court has no such power.
• Early resolution is possible
  many sponsorship appeals are resolved through Alternative Dispute Resolution before a full hearing, which can save months.

Judicial review is what you turn to when no right of appeal exists. When one does exist, use it.

This is the immigration appeal we handle most often, and the refusals fall into recognizable patterns.

Genuineness of the relationship. The officer concluded your marriage or partnership was entered into primarily for immigration purposes, or is not genuine. These refusals frequently rest on an interview transcript, a handful of inconsistencies, or assumptions about how your relationship should look. On appeal you can put the full picture in front of the Division and testify to it yourself, which is a very different exercise from arguing on paper.

Excluded family member. A family member was not declared and not examined when you immigrated, and is now excluded from sponsorship. This is one of the harshest provisions in the Regulations and it catches people who had no idea they had done anything wrong. We have written about what it actually means in excluded family member 125(1)(d) explained, and we overturned a sponsorship refusal on this ground on a file that was sixteen years old.

Sponsor eligibility and inadmissibility. Income shortfalls, undischarged sponsorship undertakings, or a medical or criminal inadmissibility affecting the applicant.

Residency obligation. Permanent residents must meet a physical presence requirement, and falling short can cost you your status. But the Division can consider why you were outside Canada. Caring for a sick parent abroad, employment with a Canadian business, a spouse’s posting, the best interests of a child in Canada, and the degree of establishment you have built here are all relevant. The appeal is often less about arithmetic than about the story behind the numbers, told properly and supported by documents.

Removal orders. A removal order against a permanent resident can be appealed, and the Division can consider humanitarian and compassionate factors including your establishment in Canada, family in Canada, the impact on children, and rehabilitation. These are serious matters with short timelines and they should be assessed immediately.

We file first to protect your deadline. Where time is short, the notice of appeal goes in while the analysis continues. A preserved deadline is worth more than a perfect first draft.

We obtain and read the GCMS notes. The refusal letter tells you the conclusion. The notes tell you the reasoning, and the reasoning is what your evidence has to answer.

We build the record the Division will actually respond to. This is the bulk of the work. Appeals are won on evidence and on witnesses who are properly prepared, not on argument alone.

Your appeal is conducted by our legal counsel. Dr. Pallavi Kataria, Barrister and Solicitor, Pallavi Law Office, appears on your behalf, and if the matter later needs the Federal Court she takes it there too. Dikshit Soni, RCIC (R536007), leads the case assessment and the preparation of your file. Everything stays in one office, with one team, from the refusal through to the hearing.

We tell you honestly what your appeal is worth. Some refusals are very winnable on appeal. Some are better answered with a fresh application. You will be told which one you have before you commit to anything.

If you have a right of appeal, it is the strongest position you will ever be in against a refusal. It is also the one that expires the fastest.

Send us the refusal letter today. We will tell you whether you have appeal rights, how long you have left, and what your appeal is realistically worth.

If a family class sponsorship application is refused, you generally have a right of appeal to the Immigration Appeal Division. It does not follow that you should use it.

Here is the point clients are almost never told before they commit. If you appeal and the appeal is dismissed, that dismissal is a decision on the merits, and it closes the door on simply filing again. A fresh application after a dismissed appeal runs straight into the finality of that decision. Whereas if you do not appeal, and you are otherwise eligible, a better prepared application is often still open to you.

So the real question after a family class refusal is not whether you can appeal. It is which of the two roads actually gets your family here.

This applies across spousal and common-law sponsorship, dependent child sponsorship and other relative sponsorship. It is a strategic decision with a deadline attached to it, and it is worth thirty minutes of proper advice before you commit to either road. We will tell you honestly which one we think is stronger, including when that answer is to wait.

• Judicial Review of an IRCC Refusal
• Responding to a Procedural Fairness Letter
• Immigration Refusals and Appeals
• Spousal, Common-Law Partner, and Dependent Child Sponsorship