Appeal and Judicial Review
Englobe Law LLP
Appeal
When it comes to Canadian immigration, the appeal process is an important mechanism for individuals who are dissatisfied with decisions made by Immigration, Refugees and Citizenship Canada (IRCC) regarding their immigration applications.
Appeals allow applicants to challenge these decisions and have them reviewed by an independent tribunal.
Here’s an overview of the appeal process for IRCC decisions:
In some cases, the decision of the appellate body might still be unsatisfactory to one of the parties involved. Depending on the specific process, there might be further avenues for appeal to higher courts, though the grounds for such appeals are often limited to questions of law.
Don’t let complex legal procedures stand in the way of your immigration goals. Contact us to take control of your immigration future. Our team offers the expertise you need to navigate these challenges effectively.
After reviewing the appeal materials and conducting any necessary hearings, the appellate body issues a decision. This could involve upholding the original decision, allowing the appeal and granting the requested immigration benefit, or remanding the case back to the initial decision-maker for further consideration.
In most cases, the appellate body reviews the appeal materials submitted by both the appellant and the government authorities (IRCC). Depending on the specific rules of the appellate division, there might be an oral hearing where the appellant and their representative can present their arguments in person. The hearing allows the appellant to respond to questions from the tribunal members.
After filing the Notice of Appeal, the appellant (the person filing the appeal) is usually required to submit detailed materials, which could include written submissions, supporting documents, and legal arguments. These materials provide the appellant with the opportunity to present their case and explain why they believe the original decision was incorrect.
To initiate the appeal process, the applicant must file a “Notice of Appeal” with the relevant appellate division within a specified timeframe. This notice indicates the intention to challenge the decision and provides basic information about the case.
The appeal process involves different divisions or appellate bodies, depending on the type of application. For example:
The Immigration Appeal Division handles appeals related to family sponsorship applications, removal orders, and residency obligation determinations.
The Refugee Appeal Division handles appeals related to refugee protection claims that have been rejected by the Refugee Protection Division of the Immigration and Refugee Board.
Not all decisions made by IRCC are eligible for appeal. The Immigration and Refugee Protection Regulations outline which ones can be appealed. Common examples include refusals of family sponsorship applications, and certain residency obligation decisions. It’s important to review the specific refusal letter or communication from IRCC to check if the decision can be appealed.
Judicial Review
Judicial review is a legal process that allows individuals or entities to challenge decisions made by government bodies, administrative agencies, or other public authorities. In the context of immigration to Canada, judicial review refers to the process of challenging decisions made by the IRCC or the Immigration and Refugee Board of Canada through the federal courts.
Here’s how the judicial review process generally works:
If either party is dissatisfied with the outcome of the judicial review, they may have the option to appeal to a higher court, such as the Federal Court of Appeal. The grounds for appeal are typically limited to questions of law or jurisdiction.
The judge reviews the evidence, legal arguments, and precedents, and then makes a decision. The judge can decide to uphold the original decision, quash it, or order a new decision to be made based on proper legal considerations. The judgment outlines the reasons for the decision.
In some cases, an oral hearing may be scheduled where both parties present their arguments before a judge. The judge may ask questions to clarify points and assess the validity of the arguments presented.
Both parties typically submit written legal arguments and supporting documents to the court. These submissions present their respective cases and address the legal and factual issues at hand.
The government authorities involved in the decision file a response, addressing the grounds of the judicial review application and providing their arguments in support of the original decision.
The applicant serves the relevant government authorities, such as the IRCC or the IRB, with the application for judicial review and related documents. This provides them with notice of the legal challenge and an opportunity to respond.
The individual or their legal representative files an application for judicial review in the Federal Court of Canada. This application outlines the grounds on which the decision is being challenged. Grounds for judicial review could include errors of law, procedural fairness violations, irrational or unreasonable decisions, or issues related to the interpretation of the law.
The process begins when an individual or entity, often represented by a lawyer, seeks to challenge a decision made by the IRCC or the IRB. The decision could relate to various aspects of immigration, such as visa denials, deportation orders, refugee status determinations, or other matters related to immigration applications.
Don’t let complex legal procedures stand in the way of your immigration goals. Contact us to take control of your immigration future. Our team offers the expertise you need to navigate these challenges effectively.