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I am facing Permanent Residency Application Refusal. Should I appeal the decision?
Before we discuss when it makes sense to pursue an appeal, we should provide some background on how immigration and refugee-related appeals work in Canada.
Types of appeals
The Immigration Appeal Division (“IAD”), Refugee Appeal Division (“RAD”) and Federal Court of Canada hear appeals of decisions made by Immigration, Refugees and Citizenship Canada (“IRCC”).
You can appeal to the IAD if you fall into one of the following categories:
- You want to appeal a decision on a sponsorship application
- You want to appeal a removal order
- You want to appeal a residency obligation decision
Refugee applicants that receive a refusal from the Refugee Protection Division may be able to apply for an appeal at the RAD, depending on the details of their case and the nature of the refusal.
Otherwise, you may be able to make a request for judicial review to the Federal Court of Canada. The Federal Court will review your request and decide whether a hearing will be granted or not. The Federal Court will take applications for judicial review from decisions made by IRCC decision makers in or outside of Canada, including IAD and RAD decisions.
Deciding whether to appeal or not
If you feel that your application was strong and met all of the required criteria for approval, and you do not understand why a refusal was issued, we encourage you to speak with an immigration lawyer about your options.
Deciding whether to appeal will depend on each case and the information that was submitted in a particular application. In some cases, it may be best to reapply with additional information or evidence that was not included in your initial application and that can make a difference in getting an approval. Other times, there may be strong grounds to appeal the decision based on the documentation that was submitted. Depending on the type of application, there may be no option to reapply and an appeal may be the last option.
Since the appeal process can be lengthy, it is important to understand the benefits of reapplying and appealing before you go ahead. You should also keep in mind that there are strict deadlines for appeals.
For example, you have only 15 days to apply to the Federal Court for leave for a judicial review after you have received a refusal that was made from an IRCC decision-maker inside Canada. If the decision was made outside of Canada, you have 30 days. For appeals made to the IAD, you generally have 30 days to apply and 60 days in the case of a residency obligation refusal. These dates are all counted from the day you receive notification of the decision.
We encourage anyone thinking of the appeal process to speak with an immigration lawyer as quickly as possible. While a lawyer is not required to represent an individual in proceedings, the process and evidence required can be complex and the chances of success are improved if you have an experienced individual or team on your side. In Canada, immigration consultants and paralegals are not authorized to represent cases in Federal Court.
Positive Appeal Decisions
You should also understand that a positive decision from the Federal Court does not mean that you will get an approval. Instead, the Federal Court will send your application back to IRCC for review by a different officer or decision maker. The same is true for sponsorship appeals heard by the IAD. The IAD itself will grant permission for the appeal and then send your file back to a processing office for further review.
If a residency obligation is being appealed, the IAD will make a decision on whether or not a Canadian permanent resident has fulfilled their residency obligation or not and the file is not sent back to an office for a second review.
Given the repercussions of receiving a negative decision on a residency obligation and losing PR status, it should be carefully reviewed. If you lose PR status, you will need to reapply and meet PR requirements based on current conditions and not based on your past application.
It is strongly recommended that you work with a lawyer during any stage of the appeal process. You have one chance to apply on time, submit all of the required forms and information and make your case once the appeal is heard.
Judicial Review at the Federal Court of Canada
The Federal Court is Canada’s national court which hears and decides legal disputes arising in the federal domain. Immigration matters are dealt with as Applications for Judicial Review, which is narrower in scope than a full appeal. This means that the Court will only overturn in limited circumstances.
There is a 2 step process to have your matter heard at the Federal Court:
1. You must first file an Application for Leave and Judicial Review – this means that you are requesting permission to a Federal Court Judge to have your matter reviewed within a Judicial Review proceeding;
2. Should this permission be given (called “leave granted”), the Federal Court will then schedule a date for the Judicial Review hearing.
Just like the Immigration Appeal Division, a Federal Court Judge will not grant, issue or approve a Visa or application. The Federal Court will determine whether the decision of an immigration officer or a Board Member violated proper procedure or was reasonable or unreasonable. If the decision is determined to be unreasonable, the matter will be sent back for re-determination by a different officer or Board Member.
Any decision by a federal decision-maker can be judicially reviewed unless there is a first right of appeal. The refusals below can be directly judicially reviewed by the Federal Court of Canada:
• Federal Skilled Worker
• Canadian Experience Class
• Provincial Nominee Program
• Live-in Caregiver
• Work Permit
• Study Permit
• Temporary Resident Visa
• Humanitarian and Compassionate
• Pre-Removal Risk Assessment
• Request for Deferral
• Spousal Sponsorship Appeal
• Family Class Sponsorship Appeal
• Residency Obligation Appeal
• Removal Order Appeal
• Refugee Claim or Claim for Protection
During a Federal Court Judicial Review hearing, the individual involved in the matter may not testify. The Federal Court will only rely on documentation available to the immigration officer or to the Board Member at the time the decision was made. Your immigration lawyer will submit argumentation and case law and the opposing party, the attorney representing Citizenship and Immigration Canada, will do the same. The lawyers will argue the case in person before a Federal Court Judge who will make the final decision.
Are Permanent Residence Application Refusals refundable?
Generally speaking, no, there will not be a refund for a permanent residence application refusal. However, if you applied before the recent legislative changes, you may be entitled to a refund, depending on when you applied, and the reason for the refusal. If you applied before February 27, 2008, the date the major changes to the immigration law took effect, your application would be processed. You will not get a refund unless you choose to withdraw your application before it is processed. If you applied on or after February 27, 2008, and your application is not eligible for processing, you will get a full refund. If your application is available for processing, gets processed but is then refused, you will not get a refund.