Canadian Immigration Litigation

Almost every negative decision on an immigration-related application rendered either by in-land Canadian immigration centre, the Canadian Border Services Agency or a Canadian Visa Mission overseas can be challenged through the Federal Court of Appeal, if a claimant believes that the pronounced decision violates the law, ignores the facts and the documents presented in support of the application, or breaches the principles of fairness and justice.

The only exception to this rule is negative decisions that can be appealed to the Immigration Appeal Division.

The procedure of appealing a negative decision through a Federal Court is comprised of two stages. At the first stage, an appellant files an application with the Federal Court of Appeal, thus notifying the court of the appellant’s intention to appeal the negative decision. The application must identify the facts where the decision-maker erred in law or breached the principles of justice and fairness.

If the Federal Court accepts the application, it proceeds to the second stage called “Judicial review”, where the appellant represented by a lawyer appears before the Federal Court to argue the case.

While the decisions of the Immigration Appeal Division can be challenged through the Federal Court, the decisions of the Federal Court of Appeal can only be appealed to the Supreme Court of Canada, which is the highest judicial body of the country.

Strict time frames apply to filing an application with the Federal Court of Canada. The negative decisions made in-land can be appealed within 15 days of the appellant’s s receipt of the negative decision and 60 days from the date of receipt of a negative decision made by Canadian immigration authorities abroad.

Admissibility hearings are held by the Immigration Division to determine whether a Canadian permanent resident has been charged or convicted of certain crimes committed in Canada or has misrepresented the facts on the application for permanent residence in Canada.

During the hearing, the Member of the Board will hear the evidence presented by an individual under the removal order, including the testimony of the individual in question and the witnesses, and will consider evidence in support of the case and the arguments of the Minister’s Counsel, who, in most cases, presents arguments in support of the removal order.

Should as a result of the admissibility hearing an individual in question be found admissible, the immigration status of such person in Canada remains unchanged, or the person is allowed to enter Canada, and this concludes the admissibility proceedings. In some cases, certain terms and conditions might be imposed by the Board Member’s admissibility order (in rare cases, the Minister may appeal to overturn the admissibility decision).

Should as a result of the admissibility hearing the removal order stand, it can be appealed to the Immigration Appeal Division within 30 days of the decision.

No refusal by a Canadian visa centre, Immigration, Refugees and Citizenship Canada, or Immigration and Refugee Board should be considered final.

Prior to accepting the refusal, have it assessed and analysed by an immigration counsel. Such counsel must be knowledgeable and experienced to understand whether the grounds for the refusal were solid and whether the decision to refuse your application was rendered as a result of assessing all merits of your application. They will also see if such decision complied with all principles of procedural fairness and justice, and if it took into account all facts and details stated in the application in their entirety.

Negative decisions can be reversed if the decision was wrong, in fact, or in law, by writing a request to reconsider the negative decision to the decision-maker.

Another remedy to reverse a wrongful refusal is available by way of bringing an application to appeal the refusal to the Appeal Division of Immigration and Refugee Board or to the Federal Court of Canada.

It is important to remember that there is a time limit for bringing an appeal to the appropriate court and you may lose the right to appeal if the time limit has lapsed.

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.

Canada is committed to ensuring fairness and due process to individuals seeking to remain in the country for the reason of danger posed to their lives in their home countries.

Most individuals who are under an enforceable removal order from Canada are eligible to apply for a Pre-Removal Risk Assessment (PRRA) to assess the potential danger for their lives and prevent them from the risk of persecution in the country of their prospective return.

The decision of whether or not to apply for Pre-Removal Risk Assessment rests entirely with the individual under the enforceable removal order.

Should you choose to apply for PRRA, it is very important to follow the requirements of the PRRA application and submit facts and evidence in support of the potential danger to your life that you would face upon your return to home country.

In case an individual has prior claimed a refugee status in Canada and the claim was rejected by Immigration and Refugee Board, it is a requirement of the Pre-Removal Risk Assessment application that only new evidence, which has not been presented and considered by the Immigration and Refugee Board at the time of the hearing of the refugee claim, be submitted in support of the PRRA.

There will be a suspension of deportation for an individual who has properly and timely applied for Pre-Removal Risk Assessment until the time the application is considered and a decision is rendered.

An individual will have 15 days to submit the PRRA starting from the day that they accepted the opportunity to apply for the PRRA.

The IRCC officer reviewing your application will consider whether the definitions of persecution described in Geneva Convention can be applied to your PRRA application. Such definitions are:

• Risk of torture; and
• Risk to your life or the risk that you may be subjected to cruel and unusual treatment or punishment.

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).

If the Pre-Removal Risk Assessment Application is Refused

In case the Pre-Removal Risk Assessment Application is refused, the removal order issued against an individual becomes enforceable and the individual is expected to leave the country as soon as it is practically possible.

The remaining remedy to fight an enforceable removal order is to bring an Application for Leave and Judicial Review of the negative decision rendered in regards to PRRA application to the Federal Court of Canada along with Motion to Stay Deportation.

If the Pre-Removal Risk Assessment Application is 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.”

Canada Border Services Agency (CBSA) is Ministry responsible for Canadian Borders, admission to Canada and deportations from Canada.

It is the responsibility of CBSA to carry out enforceable deportation orders as soon as it is practically possible.

If an individual under an enforceable deportation order has special circumstances, such as pending in-land application for permanent residence in Canada in Family Class or on humanitarian and compassionate grounds, has underage children who are in school, has special medical condition, pregnancy, etc, such individual may apply for the deferral of deportation order.

Request for Deportation Deferral is to be made to a Supervising Officer of CBSA. In  such request, the reasons and grounds for the deferral  have to be outlined and well documented.

If granted, deferrals of deportation are usually temporary and contingent on the change of circumstances which led to the deferral of deportation or the outcome of immigration application.

if the request for deportation deferral is refused, an individual under enforceable deportation may challenge the refusal of the request for the deferral by filing a Motion for a Stay of deportation to the Federal Court of Canada.

Any conviction under Canadian federal legislation, such as the Criminal Code or the Controlled Drugs and Substances Act, will cause inadmissibility to Canada.

An offense outside of Canada, that is equivalent to an offence under Canadian federal legislation punishable by way of indictment, will cause criminal inadmissibility to Canada. The only way to overcome this inadmissibility would be by applying for Criminal Rehabilitation or by obtaining a temporary resident permit.

There are numerous factors to assess when considering whether the application for Temporary Resident Permit, Criminal Rehabilitation, or Deemed Rehabilitation will be granted in order to overcome inadmissibility and be allowed to enter Canada. It is advisable to have your criminal conviction analyzed by a professional immigration counsel in order to determine what the chances will be to overcome your charges or convictions.

The length of time before you will be allowed entry to Canada will depend on the offense committed outside of Canada and its equivalent Canadian offense, and on your intention to stay in Canada temporarily or permanently.

For crimes committed in Canada, if the applicant remains in Canada when submitting the application, the assessment of criminal charges/convictions and rehabilitation undertaken after charges/convictions will be made by a designated in-land immigration officer who has the right of exercising discretion in making a decision, including consideration of humanitarian and compassionate factors of the application.

For crimes committed anywhere outside Canada, the application process will directly depend on the type of a criminal conviction and its equivalent in the Canadian Criminal Code or the Controlled Drugs and Substances Act, the amount of time that has passed since the conviction, and completion of sentence and criminal rehabilitation following conviction. The terminology “completion of the sentence” refers to the payment of ordered fees and fines, completion of probation, and jail time.

Please refer to the timetable below to identify your options:

Most negative decisions rendered by Canadian immigration authorities in Canada, by Canada Visa Missions overseas, or by officers of the Canada Border Services Agency can be challenged with an appeal procedure. An appeal can be made through the Federal Court of Canada, or through one of the Immigration and Refugee Board appeal bodies as follows: Immigration Appeal Division (IAD) or Immigration Division (ID).

The appeals heard by the Immigration Appeal Division are limited to specific types of cases:

• Appeals of family class sponsorship refusals;
• Appeals of removal orders issued against Canadian permanent residents;
• Appeals brought by Canadian permanent residents who were found to not have met Canadian residency requirements;
• Appeals of decisions of inadmissibility made by the Immigration Division;

Appeals heard by the Immigration Division are as follows:

• Detention reviews;
• Admissibility hearings for Canadian permanent residents believed to have contravened the Immigration and Refugee Protection Act (IRPA), and who consequently face removal from Canada.

There is a limitation period within which an individual’s intention to appeal the negative decision has to be brought to IAD or to an ID.

The intention to appeal a negative decision rendered by an overseas Canadian Visa Mission has to be brought to the IAD within 60 days of the day of the decision.

The intention to appeal a negative decision made in-Canada has to be communicated to IAD within 30 days of the day of the decision.

All decisions made by IAD and ID are based on factual and documentary evidence, the testimony of witnesses provided by the appellant, and case law that applies to specific case in question.

Our firm has extensive experience in representing appeals to the Immigration Appeal Division and hearings at the Immigration Division. We would be happy to assist you.  Contact us today to learn more about our services.