IMMIGRATION APPEAL DIVISION OPTIONS FOR CANADIAN IMMIGRATION
The informal place that immigration appeals are made is the Immigration Appeal Division (“IAD”). Most people choose to be represented by a lawyer at IAD.
The IAD is a tribunal. This is an informal type of court where there is no judge but a “member” (“Member”) who acts as an informal judge and makes the decision. The Member is not required to be a lawyer. The rules, procedure and atmosphere are more informal.
The most typical cases that go to IAD for appeal are a rejected application for sponsorship of a spouse, parent or child. Other cases that go to IAD for appeal also include a rejected PR Card application and having a hearing to determine if someone will be allowed to remain in Canada due to criminal issues.
In the typical case to sponsor a spouse the main issue will be if this is a “real” marriage because two people are in love or if it is a “marriage of convenience” for immigration purposes. In the typical case to sponsor a parent the issues will be is the parent too ill to be brought into Canada without costing Canada too much in medical costs or does the sponsor earn enough to be eligible to sponsor.
The basic procedure in an IAD appeal for a typical case is the sponsor applied to sponsor the applicant for immigration to Canada. The sponsor and applicant have received a rejection letter containing reasons for the refusal. The sponsor and applicant have a limited number of days (30) to file the notice to commence the appeal. If the deadline is missed generally the IAD appeal cannot continue.
The sponsor and applicant receive back a copy of the Tribunal’s record and file. The sponsor and applicant file their written arguments and supporting documents.
In Vancouver the IAD suggests a hearing for Alternative Dispute Resolution (“ADR”) take place. This is an informal one-half or full day hearing in which the Member, DOJ lawyer and sponsor and sponsor’s lawyer meet to discuss a few key issues the Member and DOJ have concerns about. After the meeting the Member can decide the sponsor has won and no IAD hearing is required or the sponsor loses and the IAD hearing is required.
At the IAD hearing the lawyer can call on witnesses to present evidence. In the typical case of a sponsor sponsoring a spouse this usually includes the sponsor and the spouse. The spouse generally is still in his or her original home country. The testimony of the sponsor is given in person and the interview of the spouse is done by speaker telephone conference. Other witnesses can be called by the sponsor’s lawyer. The DOJ will ask questions of the sponsor and the spouse to test the truthfulness of the statements and try to prove the weaknesses of the case. Sometimes DOJ will call witnesses also. The hearing is generally one-half to one day long. At the hearing the Member can make the decision instantly and deliver it verbally from the bench or wait until later and provide a written decision. It usually takes approximately 12 months from the commencement of appeal to get to IAD and to get a written decision. The IAD decision can also be appealed further.
Brian Edward Tadayoshi Tsuji
Canadian Immigration Lawyer
2800 Park Place
666 Burrard Street
Vancouver, British Columbia, Canada, V6C 2Z7
Tel:(604) 643-6496 Fax:(604) 605-3596