Canadian Immigration Litigation

Almost any negative decision on an immigration application made by an in-land Canadian immigration center, the Canadian Border Services Agency (CBSA), or a Canadian Visa Mission overseas can be challenged through the Federal Court of Canada. This is possible if the claimant believes the decision violates the law, ignores facts or documents presented, or breaches principles of fairness and justice.

Appeal Process and Exceptions: The only exception is decisions that can be appealed to the Immigration Appeal Division. The process involves two stages:

1. Application Filing: An appellant submits an application to the Federal Court, highlighting errors in law or breaches of justice in the original decision. This application must be filed within strict time frames: within 15 days for in-land decisions and 60 days for those made abroad.
2. Judicial Review: If the Federal Court accepts the application, a judicial review is scheduled where the appellant, represented by a lawyer, presents their case. Decisions made by the Immigration Appeal Division can also be challenged through the Federal Court, but decisions of the Federal Court of Appeal can only be further appealed to the Supreme Court of Canada, the highest judicial body in the country.

To ensure a successful appeal, it’s essential to act within the specified deadlines and provide a strong legal argument backed by evidence and representation. Seek professional guidance from our trusted Canadian Litigation Lawyer in Toronto, to ensure timely and accurate representation.

Admissibility hearings are conducted by the Immigration Division to determine whether a Canadian permanent resident or foreign national can stay in or enter Canada. These hearings occur if the individual is charged or convicted of certain crimes in Canada or has misrepresented information on their PR application.

Hearing Process: During the hearing, a Board Member reviews evidence, including testimony from the individual and witnesses, and arguments from the Minister’s Counsel, who often supports the removal order.

• If Found Admissible: The individual’s immigration status remains unchanged, or they are allowed to enter Canada. Certain conditions may be imposed in rare cases, and the Minister may appeal the decision.
• If Removal Order Stands: The individual can appeal to the Immigration Appeal Division within 30 days of the decision.

How to Win and Protect Your Immigration Status

To win an admissibility hearing, it’s essential to present strong evidence and arguments that support your case. This involves demonstrating that any allegations, such as criminal convictions or misrepresentation, are either unfounded or do not warrant removal. Here are some key strategies for success.

1. Prepare Thorough Evidence: Collect all necessary documents, witness testimonies, and legal arguments to counter the claims against you.
2. Engage Expert Legal Representation: A skilled Canadian immigration lawyer can navigate the complexities of the hearing, presenting your case effectively and challenging the Minister’s Counsel’s arguments.
3. Highlight Positive Factors: Emphasize your contributions to Canada, such as community involvement, family ties, or rehabilitation efforts, to build a compelling case.

If the hearing results in a removal order, you can appeal to the Immigration Appeal Division within 30 days. Ensuring thorough preparation and professional representation significantly improves your chances of winning the admissibility hearing and retaining your status in Canada.

No negative decision by a Canadian visa center, Immigration, Refugees and Citizenship Canada, or the Immigration and Refugee Board should be considered final. To successfully appeal, first have the refusal reviewed by an experienced immigration counsel to determine if the decision was based on solid grounds, followed procedural fairness, and considered all the facts of your case.

Steps to Challenge a Negative Decision:

1. Request for Reconsideration: If the decision is wrong in fact or law, request reconsideration from the decision-maker.
2. File an Appeal: If the refusal persists, you can file an appeal with the Immigration Appeal Division or the Federal Court of Canada.

Time is Critical: Remember, strict time limits apply for appeals. Acting promptly is crucial to preserve your right to appeal.

We will advise you on whether filing an appeal of a negative decision is warranted, and we will use our extensive experience and expertise in representing your case. Contact us today to learn more.

What is prra in canada

Canada offers a Pre-Removal Risk Assessment (PRRA) to individuals under an enforceable removal order who face potential danger in their home country. This process evaluates the risk of persecution, torture, or cruel and unusual treatment upon return.

Key Aspects of PRRA:

1. Eligibility & Application: Eligible individuals have 15 days to submit their PRRA application, including new evidence not previously considered by the Immigration and Refugee Board (IRB).
2. Processing Time: PRRA processing time varies, and deportation is suspended while the application is reviewed.
3. Decision Outcomes: If approved, the individual gains protected person status and can apply for permanent residence. If refused, the removal order is enforceable, with the option to seek judicial review at the Federal Court.

Understanding PRRA Processing Times and Decision Criteria:

• The PRRA processing time for 2024 can be affected by factors such as case complexity and documentation submitted. It’s crucial to submit a complete and thorough application to avoid delays.
• An IRCC officer assesses the application based on criteria from the Geneva Convention, focusing on risks like torture or life-threatening persecution.

Please note that an individual will not be eligible to apply for PRRA if the person:

• Is a protected person (that is, you presently enjoy refugee protection in Canada);
• Is found to be a Convention refugee by another country and can return there;
• Made a refugee claim, and it was not eligible to be referred to the Immigration and Refugee Board (IRB) because they came to Canada from a safe third country;
• Made a refugee claim, which was rejected by the IRB (includes abandoned or withdrawn), and less than 12 months have passed since that time;
• Applied for a PRRA, which was rejected by IRCC, and less than 12 months have passed since that time;
• Is subject to extradition (extradition is a formal request that Canada returns you to another country because you are a suspected or convicted criminal).

Pre-Removal Risk Assessment Application Refused

If a PRRA application is denied, the removal order becomes enforceable. To challenge this, an Application for Leave and Judicial Review, along with a Motion to Stay Deportation, can be filed with the Federal Court of Canada.

Pre-Removal Risk Assessment Application Granted

In case the decision rendered for the PRRA is positive, an individual receives the status of a “protected person” and becomes eligible to apply for permanent residence in Canada as a “protected person.”

If you are under an enforceable deportation order in Canada and face unique circumstances such as a pending permanent residence application, medical conditions, pregnancy, or have children in school, you may request a deportation deferral.

This request, made to a CBSA Supervising Officer, must be well-documented and outline the compelling reasons for deferral.

If granted, deferrals are temporary and dependent on changes in circumstances or the outcome of immigration applications.

If denied, you can challenge the decision by filing a Motion for a Stay of Deportation at the Federal Court of Canada.

Criminal inadmissibility to Canada can result from any conviction under Canadian federal legislation, such as the Criminal Code or the Controlled Drugs and Substances Act, as well as equivalent offenses committed outside of Canada. To overcome this inadmissibility, individuals can apply for Criminal Rehabilitation or obtain a Temporary Resident Permit (TRP). The decision to grant these applications depends on factors like the nature of the offense, the time elapsed since the conviction, and the applicant’s intention to stay in Canada temporarily or permanently.

Key Considerations for Overcoming Criminal Inadmissibility:

1. Criminal Rehabilitation: For those with past convictions, Criminal Rehabilitation is a permanent solution that removes inadmissibility. Applicants must wait five years after the completion of their sentence to apply.
2. Temporary Resident Permit (TRP): This temporary solution allows entry despite inadmissibility. It’s suited for individuals with urgent reasons to enter Canada, such as business or family matters.
3. Deemed Rehabilitation: For non-serious offenses committed over ten years ago, individuals may be deemed rehabilitated automatically without the need for an application.

Application Process and Factors:

• For Crimes Committed in Canada: An in-land immigration officer reviews the application, considering humanitarian factors and the completion of the sentence, including probation and fines.
• For Crimes Committed Outside Canada: The assessment is based on the equivalent Canadian offense, the time since the conviction, and the rehabilitation process post-conviction.

It is crucial to consult with an expert Canadian immigration Lawyer in Toronto to analyze your criminal record and determine the most effective path to overcoming inadmissibility and gaining entry to Canada.

Please refer to the timetable below to identify your options:

Negative decisions made by Canadian immigration authorities, whether from Canada Visa Missions abroad, within Canada, or by the Canada Border Services Agency (CBSA), can be contested through formal appeal procedures. These appeals are handled by various bodies under the Immigration and Refugee Board (IRB) or the Federal Court of Canada.

Types of Appeals:

1. Immigration Appeal Division (IAD):
   • Family class sponsorship refusals: Appeals from Canadian citizens or permanent residents whose sponsorship applications for family members have been denied.
   • Removal orders: Appeals for permanent residents facing deportation after being issued a removal order.
   • Residency requirement appeals: Permanent residents who failed to meet residency obligations can appeal the decision.
   • Admissibility decisions by the Immigration Division: These are appeals concerning individuals found inadmissible under the Immigration and Refugee Protection Act (IRPA).
2. Immigration Division (ID):
   • Detention reviews: Hearings to review the legality and conditions of immigration detention.
   • Admissibility hearings: Permanent residents or foreign nationals may face removal due to violations of the IRPA, and the ID handles these cases.

Key Deadlines:

• Overseas Visa Mission decisions: Appeals must be filed with the IAD within 60 days of the decision.
• In-Canada decisions: Appeals must be communicated to the IAD within 30 days.

The Appeal Process:

Appeals rely heavily on factual evidence, witness testimony, and supporting case law. Proper legal representation is essential to prepare strong submissions and present a compelling case. Our Canadian Immigration firm offers extensive experience in managing appeals before both the Immigration Appeal Division and Immigration Division, ensuring that clients receive thorough and strategic legal support.

Contact us today to learn more about how we can assist you with your immigration appeal.