This blog post provides guidelines on how to appeal a removal order in Canada through the Immigration Appeal Division (IAD).
Who Can Appeal:
- Permanent residents of Canada
- Foreign nationals with a permanent resident visa
- Convention Refugees or Protected Persons
Who Cannot Appeal: Those who are otherwise eligible but have been found inadmissible for reasons such as:
- Conviction of a serious crime in Canada
- Conviction of a serious crime outside Canada that would have severe penalties in Canada
- Involvement in organized crime
- Being a security threat
- Violation of human or international rights
Public Nature of Appeals:
- Immigration appeal hearings are mostly open to the public.
- Information from the appeal might be published online.
- Confidentiality orders can be obtained under exceptional circumstances, such as safety risks to you or your child.
The guide aims to help individuals understand the appeal process, the eligibility criteria, and the public nature of the proceedings.
The following outlines the procedure for initiating an appeal against a removal order with Canada’s Immigration Appeal Division (IAD).
Starting the Appeal:
- Submit a completed “Notice of Appeal” form and a copy of the removal order you received.
- Additional documents can be included if they may help your appeal.
- Appeals must be filed within 30 days of receiving the removal order.
- Keep contact information up to date to avoid dismissal or abandonment of the appeal.
- You can hire paid counsel, who must be authorized and in good standing with a recognized Canadian professional organization.
- You can also have unpaid counsel, like a friend or relative, who can be based even outside Canada. Unpaid counsel cannot be a witness.
- Provide IAD with the contact information of your paid or unpaid counsel and be ready to attend all hearings or conferences.
- If you are a minor or have mental health issues, IAD can appoint a designated representative to help you.
- “Vulnerable persons,” such as those who have experienced trauma or have health concerns, can receive special accommodations.
The appeal process is stringent with deadlines and requirements, and you have the option of representing yourself or hiring counsel. Special provisions are available for minors, those with mental health issues, and vulnerable individuals.
The text provides detailed information on how to proceed with an immigration appeal in Canada.
- The person making the appeal is called the “appellant.”
- The Minister seeking to remove the appellant is the “respondent,” represented by an officer from the Canada Border Services Agency, known as the “Minister’s counsel.”
- The individual hearing the appeal is a member of the IAD tribunal.
- An Early Resolution Officer (ERO) is available for general guidance but not legal advice.
- The appellant bears the burden of proving why the decision should be reversed.
- Evidence can come from the appellant’s statements, witnesses, and submitted documents.
- Once the appeal is filed, the Minister sends the appellant’s sponsorship file, known as the “appeal record,” within 30 days (45 days if filed before Jan 14, 2023).
- The record contains information on why a removal order was issued and serves as evidence.
- For appeals filed on or after January 14, 2023, the appellant must provide documents and information, known as “disclosure,” within 60 days of receiving the appeal record.
- Failing to provide or explicitly waive disclosure could result in the dismissal or abandonment of the appeal.
Late or Additional Disclosure:
- Late disclosure may be disallowed unless adequately justified.
- Documents in response to new evidence can be provided even if the deadline for disclosure has passed, but no later than 30 days before the hearing.
- Self-represented appellants or those with unpaid counsel can attend a virtual meeting with an ERO for preparation guidance.
- Specific guides are available for various types of removal orders (criminal conviction, residency obligation, misrepresentation).
The document emphasizes the need to be proactive, informed, and timely in managing one’s appeal case.
The text outlines two options for resolving an immigration appeal in Canada without going through an oral hearing:
- Informal Resolution: An Early Resolution Officer (ERO) may reach out to you or your counsel for additional information about your case. This discussion aims to see if the appeal can be settled without a formal hearing.
- Alternative Dispute Resolution (ADR): Your case may be scheduled for an ADR conference, which is an informal meeting between you, the Minister’s Counsel, and an ERO. This meeting is designed to clarify issues and encourage both parties to agree on a decision. If an agreement is reached, a formal hearing becomes unnecessary, and a decision confirming the resolution of your case will be issued.
Both options aim to expedite the appeal process by potentially eliminating the need for an oral hearing. Guidance on preparing for an ADR conference is available.
Scheduling Your Hearing with the IAD
The Immigration Appeal Division (IAD) will contact you or your counsel to schedule your hearing. After you’ve received the proposed date, you have two days to inform the IAD if you’re unavailable. Once you’ve agreed to a hearing date, you’re expected to be prepared for the hearing at the agreed time, even if you decide to hire counsel later.
Receiving the Notice to Appear
After the hearing date is confirmed, you will receive a Notice to Appear. This notice specifies the date, time, and format of your hearing, which could be virtual, in-person, or via telephone. Instructions for virtual hearings will be provided, and in-person hearings are conducted at various locations across Canada. Remote participation via phone or Microsoft Teams is available if in-person attendance isn’t feasible.
What To Do If You Cannot Attend the Scheduled Hearing
If you or your counsel can’t attend on the agreed date, or aren’t prepared to present your case, you should contact the IAD immediately to request a postponement. This is typically granted only in exceptional circumstances. To request a change, send a communication that includes your appeal file number and explains why you need to reschedule. Also, provide at least six alternative dates and share a copy of this request with the Minister’s counsel. Make sure the IAD receives your postponement request at least 3 working days before the original hearing date.
Procedure If Rescheduling is Denied
If your rescheduling request is denied, you must proceed with the original hearing date. Failure to attend could result in your appeal being dismissed or declared abandoned, essentially ending your appeal and upholding the original decision. If your rescheduling request arrives late or you don’t get a response from the IAD, you should still attend the original hearing. You can request a date change at the start of the hearing, but be prepared to continue if the request is denied. Ensure you have all necessary documents, counsel, and witnesses present.
If your immigration appeal in Canada can’t be resolved informally, the Immigration Appeal Division (IAD) will schedule an oral hearing. You have two days to inform them if the proposed date doesn’t work for you. Once the date is set, you must be prepared to proceed, even if you later decide to hire counsel.
You’ll receive a “Notice to Appear” that informs you of the date, time, and format of the hearing, which can be virtual, in-person, or over the phone. Instructions for virtual hearings will be provided, and in-person hearings are available at multiple locations.
If you can’t attend the hearing, you must request a postponement from the IAD as soon as possible. These are granted only in exceptional circumstances and must be made at least three working days before the scheduled hearing date. You must also notify the Minister’s counsel of your request to postpone.
If your postponement request is denied or arrives late, you must be prepared to go ahead with the scheduled hearing. Failing to attend could result in your appeal being dismissed or declared abandoned, meaning the original decision you are challenging will stand.
If you filed your immigration appeal in Canada before January 14, 2023, you are required to send all your supporting documents, information about witnesses, and interpretation needs to both the IAD and the Minister’s Counsel at least 20 days before your hearing. This is known as disclosure of evidence. A guide is available to help you prepare these documents.
For virtual hearings, a separate guide provides technical requirements and tips. Witnesses must be listed 30 days before the hearing, and you should provide various details about them, including how they will testify (in-person, virtual, or by phone).
If you have expert witnesses like doctors, they must send a signed report outlining their qualifications and the evidence they will provide. This also needs to be done 30 days before the hearing and sent to both the IAD and the Minister’s Counsel. You are responsible for any fees charged by the expert witness.
If you need a witness to appear and they are in Canada, you can request the IAD to issue a summons. This compels the witness to attend the hearing. It’s your responsibility to serve the summons and offer to cover their fees and travel expenses.
Your immigration appeal hearing in Canada will include several key participants: the IAD member deciding your appeal, you and your counsel (if you have one), the Minister’s counsel, any witnesses you’ve called, an interpreter if needed, and a designated representative if required.
- Arrive Early: Make sure everyone involved is prepared and present before the hearing starts. Your Notice to Appear will specify the time.
- Opening by IAD Member: The hearing will be managed by an impartial IAD member, who will guide you through the process if you don’t have counsel. The member’s role is to gather information to decide on your appeal.
- Your Testimony: Typically, you’ll be the first to testify. You’ll be sworn in and questioned by your counsel or the IAD member. The Minister’s counsel will then cross-examine you. You or your counsel can clarify your statements afterward.
- Witness Testimony: Your witnesses will wait outside until it’s their turn. They’ll be sworn in and questioned first by your counsel (or by you if you don’t have counsel), then cross-examined by the Minister’s counsel. Clarifications can be made afterward.
- Closing Arguments: Once all testimonies are complete, you or your counsel will present final arguments, followed by the Minister’s counsel. These are usually oral but may sometimes be requested in writing.
Throughout the hearing, the focus is on collecting information to help the IAD member make a decision on your appeal.
The IAD member thoroughly examines all evidence and relevant laws before making a decision on your appeal. This decision may be made immediately at the end of the hearing or within 60 days if the case is reserved for further consideration.
If Your Appeal is Allowed: The removal order against you is canceled, allowing you to stay in Canada. Your immigration status remains unchanged.
If Your Appeal is Stayed: Mainly applicable in cases involving criminality, a stay puts the removal order on hold under certain conditions, such as avoiding criminal activity or reporting to border services. Failure to meet these conditions can lead to the cancellation of the stay and dismissal of your appeal.
If Your Appeal is Dismissed: The removal order is activated, and you may be deported. Your case with the IAD is closed, and you should seek legal advice for further options.
You can also contact the CBSA’s National Removal Help Line for more information on voluntary compliance with a removal order.
Judicial Review: If you disagree with the IAD decision, you can request a judicial review by the Federal Court within 15 days of being notified. The court may either dismiss your request or send the case back to the IAD for a new hearing. Legal advice is recommended if you decide to pursue this option.