IMMIGRATION APPEALS & CITIZENSHIP REVOCATION
Any type of refusal by the immigration authorities may be appealed in court in Canada. These appeals will be made either to the Federal Court of Canada, or in certain types of cases, to the Immigration Appeal Division.
If your immigration case has been rejected and you wish to know whether you have good chances of success on appeal, please scan it and e-mail it to firstname.lastname@example.org. Attach a letter or e-mail briefly explaining why you think the decision is incorrect, and give us your return e-mail address. We will review the decision and get back to you to describe your appeal options and chances. There is no fee for this service. All information provided will be kept strictly confidential.
JUDICIAL REVIEW APPEALS AT THE FEDERAL COURT
Any immigration decision may be challenged by way of Judicial Review in the Federal Court of Canada. As examples, a decision made by a visa officer to refuse a skilled worker application, or a decision of a citizenship judge to reject a citizenship application, are both reviewable administrative decisions. This means that the Court can review the decision to decide whether it was lawfully made. Issues the Court will consider include whether the decision-maker acted legally and within jurisdiction, whether the decision was made using a fair procedure, and whether the decision was reasonable in light of the evidence. It is not necessary for the applicant to be in Canada or to appear before the Court in person, the case can be managed entirely by Mr. Turetken’s office including any appearances at the Court.
If the Court decides that the decision was not properly made, the case will be sent back to be re-decided by a different decision-maker. This type of appeal to the Court must be made within strict deadlines, generally 15 days of a refusal made in Canada, or 60 days of a refusal made outside Canada, so it is important to act promptly to preserve your appeal rights.
DELAYED CASES – MANDAMUS
While most appeals at the Federal Court level seek to overturn a decision that has already been made, in some instances the appeal is seeking the making of a decision. For example, where the immigration authorities have unreasonably delayed the processing of a visa application, an appeal to the Federal Court can be made requesting that the Court order the immigration authorities to complete the processing of the application immediately. This type of court order is called “mandamus” which is Latin for “we command”. The Federal Court has the authority to order the citizenship and immigration authorities to do anything that they are legally obliged to do but have unreasonably failed to do.
If your citizenship or immigration application has been delayed far beyond normal processing times you may wish to bring an appeal to the Federal Court seeking an order of Mandamus compelling the making of a decision. CANADAVISAOFFICE.ORG has years of experience successfully assisting clients to pursue this remedy.
APPEALS TO THE IMMIGRATION APPEAL DIVISION
In certain types of immigration cases a negative decision can be appealed to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, which is an independent administrative tribunal. Such appeals are available to those who are citizens or permanent residents of Canada, or persons who have been granted refugee status. Usually an appeal must be made within 30 days of the negative decision so in these situations it is important to act quickly in order to preserve your appeal rights. The types of cases which can be appealed to the IAD include:
• Sponsorship Appeals Where a Canadian citizen or permanent resident has attempted to sponsor a family member and the application was rejected by the Immigration authorities, an appeal may be made to the IAD within 30 days of receipt of the refusal letter.
• Residency Appeals In a situation where a permanent resident is determined not to have fulfilled the residency requirement, and has lost their permanent residence as a result, an appeal can be made to the IAD within 60 days of the decision.
• Removal Order Appeals If a permanent resident has been found to be inadmissible for criminality, misrepresentation, or other immigration offences,and is ordered removed from Canada, an appeal may be made to the IAD within 30 days of receipt of the removal order.
Persons who appeal to the Immigration Appeal Division must attend a hearing, either in person or by teleconference. Appellants will be permitted to present new evidence in support of their case, may personally testify, call witnesses, and be represented by a lawyer. The IAD will consider whether the negative decision was legally made, and may also consider Humanitarian and Compassionate factors related to the case. If the IAD decides that the decision was wrongly made, or there exist sufficiently compelling Humanitarian and Compassionate factors, it will overturn the original decision and send the case back to be re-decided in accordance with its findings. If the IAD dismisses the appeal, a further appeal of the IAD’s decision may be made to the Federal Court.
REFUSED CITIZENSHIP APPLICATIONS
Permanent residents who applied for Canadian citizenship and were rejected can appeal the negative decision of the citizenship authorities to the Federal Court within 30 days. The appeal will proceed as a judicial review, meaning that the court will review the decision and the evidence that was before the decision-maker and will decide whether the decision was reasonable in light of the evidence, procedurally fair, and otherwise made in accordance with the law. If the court finds that the citizenship authorities made a legal error, the court will send the case back to the citizenship authorities to re-decide the application. It is not necessary for the applicant to be in Canada or to appear before the Court in person, the case can be managed entirely by Mr. Turetken's office including any appearances at the Court.
Persons who have obtained Canadian citizenship may be subject to revocation proceedings in certain circumstances. The citizenship authorities may revoke a person’s citizenship if the Minister of Citizenship and Immigration is satisfied, on the balance of probabilities, that it was obtained by fraud, or that the person’s permanent residence was obtained by fraud. The Minister may revoke a person’s citizenship if the person is convicted of treason, a terrorism offence, being a traitor, spying, or other security-related offences. The Minister may revoke a person’s citizenship if they served as a member of an armed forces or armed group that was engaged in an armed conflict with Canada. The Minister may not revoke citizenship if it would render the person stateless – i.e., revocation only applies to dual citizens.
Revocation proceedings will be commenced by the citizenship authorities who will provide notice to those concerned and an opportunity to make submissions in their defense. If the citizenship authorities decide to revoke a person’s citizenship, this decision will be appealable by way of judicial review before the Federal Court.
If you are subject to revocation proceedings, please contact us so that we may assess your situation and advise you as to how we can best defend you.