Canadian Immigration Litigation
Get Legal Support for Canadian Immigration Litigation
Navigating the complexities of Canadian immigration litigation requires expert legal guidance. Our team at Jane Katkova & Associates specializes in providing robust representation for clients facing challenges in immigration cases, including Federal Court appeals, refugee claims, admissibility hearings, and judicial reviews. Whether you’re dealing with a rejected visa application or a removal order, our experienced lawyers are here to defend your rights and help you achieve a favorable outcome. Trust us to guide you through the legal intricacies of Canadian immigration law with professionalism and dedication.
Canadian immigration litigation involves complex legal processes aimed at resolving disputes related to immigration decisions made by authorities such as Immigration, Refugees, and Citizenship Canada (IRCC) and the Canada Border Services Agency (CBSA). This legal area covers a broad range of issues including refugee claims, removal orders, inadmissibility decisions, and challenges to denied visas or permanent residency applications. Skilled immigration litigation lawyers represent clients before administrative bodies like the Immigration and Refugee Board (IRB) and in Federal Court, providing crucial support in navigating the appeals and judicial review process.
Federal Court Appeals: Defending Your Immigration Rights
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:
- 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.
- 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.
Admissibility Hearing: Win and Protect Your Immigration Status
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
- Prepare Thorough Evidence: Collect all necessary documents, witness testimonies, and legal arguments to counter the claims against you.
- 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.
- Highlight Positive Factors: Emphasize your contributions to Canada, such as community involvement, family ties, or rehabilitation efforts, to build a compelling case.
Immigration and Refugee Board Appeals – Appealing Negative Decisions
Steps to Challenge a Negative Decision:
- Request for Reconsideration: If the decision is wrong in fact or law, request reconsideration from the decision-maker.
- 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.
Pre-Removal Risk Assessment (PRRA): Protecting Against Persecution and Risk
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:
- 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).
- Processing Time: PRRA processing time varies, and deportation is suspended while the application is reviewed.
- 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.
- 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
Request for Deportation Deferrals: Seeking Temporary Relief
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.
Resolving Criminal Inadmissibility to Canada
Key Considerations for Overcoming Criminal Inadmissibility:
- 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.
- 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.
- 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:
| Time Passed Since Sentence Completion | How to Resolve Inadmissibility |
| Less than 5 years | If fewer than 5 years have passed since the completion of the sentence, the person is not yet eligible for Criminal Rehabilitation, and pursuing a Temporary Resident Permit is the only option for entering Canada. |
| More than 5 years but less than 10 years | After 5 years have passed since the completion of the sentence for the conviction, the person becomes eligible for Criminal Rehabilitation, which wipes the slate clean for the purposes of Canadian immigration. |
| 10 years or more | If 10 or more years have passed since the completion of the sentence for the conviction, you may be deemed rehabilitated by the passage of time. This only applies to individuals who only have one minor offense on their criminal records |
Immigration Division Appeals: Navigating the Appeal Process
- 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).
- 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.
- 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.
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.
Residency Obligation Issues: Admissibility Hearings and Appeals
- Presentation of Evidence: During the hearing, the individual facing removal, also known as the appellant, can present their case. This includes testimony from the individual, supporting witnesses, and any documentary evidence to prove that they should not be removed from Canada.
- Minister’s Counsel: The government’s legal representative, known as the Minister’s counsel, will argue in favor of upholding the removal order and present evidence supporting the individual’s inadmissibility.
- Board Decision: The Immigration Division’s Board Member evaluates all evidence, testimonies, and arguments. If the individual is found admissible, their permanent resident status remains intact or they may be allowed entry into Canada under certain conditions.
- If Removal Is Upheld: If the Board upholds the removal order, the individual has 30 days to appeal the decision to the Immigration Appeal Division (IAD). The appeal process involves further review of the decision, and in some cases, terms and conditions may be applied to the individual’s stay in Canada.
- Potential Appeals by the Minister: In rare cases, if the individual is found admissible, the Minister may appeal the decision to challenge the ruling and seek enforcement of the removal order.
Our Trusted Canadian immigration lawyers can help guide you through admissibility hearings and prepare a strong case for appeals. Contact us today for professional legal representation.
