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Federal Court of AppealThe Immigration and Refugee Protection Act (IRPA) provides two levels of review of decisions made under the Act: review by way of statutory appeal to the Immigration Appeal Division and review by the Federal Court. Under section A63 (as limited by section A64 – explained below) sponsors, visa holders, permanent residents and protected persons have a right to appeal certain decisions to the IAD. At the same time, the Minister has the right to appeal to the IAD a decision made by the Immigration Division (ID) at an admissibility hearing [A63(5)]. In all other cases, where no statutory right of appeal exists or where those rights have been exhausted, there is a right to seek judicial review of any decision made under IRPA by filing an application for leave and judicial review to the Federal Court under section A72(1).

Immigration Appeal Division (IAD)

The IAD is an administrative tribunal that reviews decisions made under IRPA. This Division is part of the Immigration and Refugee Board and is completely independent of Citizenship and Immigration Canada.
IAD reviews the following matters:

  • refusal of a sponsorship application for members of the family class;
  • removal orders made against foreign nationals who hold permanent resident visas;
  • removal orders made against permanent residents and protected persons at an examination or admissibility hearing;
  • Minister’s appeal of a decision made by a member of the Immigration Division and appeals of overseas decisions on loss of permanent resident status.

Grounds for appeal

The IAD examines cases for possible errors in law, in fact, and mixed law and fact, or for failure to observe a principle of natural justice. It also has the authority to reverse valid decisions on the grounds that there are humanitarian and compassionate considerations that warrant granting special relief under its equitable jurisdiction. It should be noted, however, that if the IAD determines that the applicant is not a member of the family class or that their sponsor is not a sponsor within the meaning of the Regulations, it cannot exercise its equitable jurisdiction to consider humanitarian and compassionate factors [A65].

Humanitarian and compassionate considerations

As noted above, the IAD has an equitable jurisdiction, which allows it to consider factors that may warrant an appeal being allowed despite the fact the decision is valid in law. Section A67(1)(c) states that the IAD must be satisfied that, at the time the appeal is disposed of “. . . taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case.”
Factors to be considered by the IAD in appeals of removal orders include:

  • the seriousness of the offence leading to the removal order, where applicable;
  • the possibility of rehabilitation, where applicable;
  • the length of time spent in Canada and the degree to which the appellant is established here;
  • the family in Canada and the dislocation to the family that the deportation would cause;
  • the support available to the appellant, not only within the family but also within the community;
  • the degree of hardship that would be caused to the appellant by their return to their country of nationality, provided that the likely country of removal has been established by the appellant on a balance of probabilities.

When considering an appeal of a family class sponsorship, some of the factors that may be considered by the IAD include:

  • whether authorizing the applicant to enter would result in the reunion in Canada of the appellant with close family;
  • the strength of the relationship between the applicant and the appellant;
  • the degree to which the applicant is established abroad;
  • whether an applicant has demonstrated the potential to adapt to Canadian society;
  • whether the parties to the application have obligations to one another based on their cultural background;
  • whether the applicant is alone in their country;
  • the availability of health services to the applicant in Canada and abroad (for refusals based on medical grounds);
  • whether there is evidence of rehabilitation or the risk of the applicant reoffending (for refusals based on criminal grounds).

It should be further noted that if a foreign national or permanent resident is determined by an immigration officer or by the Immigration Division to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, they do not have a right to appeal to the IAD.

Misrepresentation

If a sponsored application for permanent residence is rejected based on a finding of inadmissibility on grounds of misrepresentation, there is no right of appeal. However, this provision does not apply if the foreign national is the sponsor’s spouse, common-law partner or child as per section A64(3).

Judicial reviews by the Federal Court

Anyone seeking the judicial review of a decision must first seek leave of the Court, i.e. permission to have the matter resolved by the Court at an oral hearing. Consequently, judicial review is a two-stage process. The first stage is the leave application that is decided via a paper-review process. If leave for judicial review is denied, the application is dismissed and proceeds no further because there is no right to appeal from this decision. If, however, leave is granted, the proceedings move on to the second stage.

Time limit

For a decision in a matter arising in Canada, the application for leave and judicial review must be commenced within 15 days after the date on which the person concerned is notified of or otherwise becomes aware of the matter. For a decision in a matter arising outside Canada, the application must be commenced within 60 days after the date on which the person concerned is notified of or otherwise becomes aware of the matter – section A72(2).

Our goal is to provide each client with a successful outcome by determining the most appropriate solution. If you would like to know whether you could be eligible to immigrate to Canada, we invite you to complete our online assessment questionnaire.

If you are interested in seeking professional assistance to guide you through the immigration process or if you have any questions, please contact us.

Testimonials

VISITOR RECORD (EXTENDING THE DEPENDENT'S STAY IN CANADA AS A VISITOR): I wanted to express my sincere gratitude to Ramesh Nookala. Thank you once again for all your advice, help and persistence in assisting me with the Visitor permit application for my daughter after CIC rejected at the first instance. Thank you for your excellent and professional service. Your communications were prompt and your correspondence detailed which surely made our process efficient. It was a pleasure dealing with you. Thank you very much!  

Manish Singhi
Burnaby, BC Canada

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PERMANENT RESIDENCE THROUGH CANADIAN EXPERIENCE CLASS: I thank Mr.Ramesh Nookala for understanding me and my case so calmly and quickly with sheer patience. He is a very intelligent and knowledgeable person. He handled my case so smartly that I never felt any blocker or issue in complete journey. I had met lots of visa agents but mostly they create illusions around visa process to show client how difficult it is but Mr.Ramesh Nookala is awesome. He make things very clear and smooth. The Best thing about Mr.Ramesh Nookala is that when you get in touch with him for your work, he starts working on it right away, he uses time wisely as he knows its important for his customers, we might be late in some procedures but he is "of the mark" right from day one, he is quick smart and intelligent person.

Vikram Bhima Raju
Irving, Texas, USA

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CANADIAN CITIZENSHIP: Mr. Ramesh Nookala is an exceptionally knowledgeable and professional Immigration Consultant and Realtor / Mortgage Consultant. From my interactions with Mr. Nookala on immigration matters, I have found that he is well versed with the guidelines and procedures of Citizenship and Immigration Canada (CIC). His approach in handling a particular situation is excellent and produces desirable outcome in a smooth way. His honesty, enthusiasm and perseverance about any case in hand is truly commendable. I highly recommend Mr. Nookala for his professional services.

Subrata Deb
Illinois, Chicago, USA

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VISITOR VISA: Hello Ramesh, I applied for my mother's visit Visa online on my own. However, due to some shortcomings in my application it got rejected without possibility of a follow up. I got disappointed as it is going to be my mother's first ever visit in 25 years to my home and I could not get the visa approved. Having left with no ideas, I contacted you. You took time to explain me with the requirements and procedures to obtain the visa. You also helped me with all required documents in right format and advised me on other necessary attachments to be submitted with my application. It proved so invaluable for me as the visa got approved right away, and that too for 10 years multiple entry. I strongly recommend any one your services and Advenure Immigration for all their immigration and visa needs.

Raju Nanduri
Richmond, BC, Canada

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VISITOR VISA: Hello Mr. Ramesh, We are extremely pleased with the grant of our visitor visas to Canada and thank you profusely for your help in undertaking and processing of our applications.  We still cannot believe that our applications have been approved so quickly which would not have been possible without your experienced and professional approach.  We were impressed with your work ethics, accessibility, and processes even when we first approached you and started discussing about our plans to apply for a visitor visa to Canada.  You made the paperwork a breeze, so easy for us, which was the reason we even took up what we thought was a huge challenge.  We must admit that we had a few setbacks but those were easily overcome by our responses guided by your brilliant, accurate, and comprehensive knowledge of immigration laws.   We did not have to remind you or email you even once about the progress of our applications.  Your understanding of our situation and personal commitment to update us of the status and constant feedback is totally commendable. We take this opportunity to once again thank you and share a true message to all those out there that with your undertaking for any immigration services to Canada,  they can be rest assured of the positive outcomes on their applications.  We would like to add that your website and online application process is well designed and user friendly and importantly your fees are very reasonable for the excellent services that you provided.  Without any hesitation, we are pleased to recommend your expert services to all our friends in the US who wish to visit Canada and who like us have very little time at their disposal in the middle of hectic research career.

Susan
Grand Forks, North Dakota, USA

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VISITOR VISA: Hi Ramesh, thank you so much for your help and guidance in successfully getting the Canadian Visitor Visas for my siblings and their families from India.  Our family get together after a long time was really great and memorable. And you made it possible!!  I will be more than happy to highly recommend your services for those who need help in the future. Keep up the great job!

Saira
Vancouver, BC, Canada

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VISITOR VISA: I have long dreamt of bringing my grandparents from India to Canada, and Mr. Nookala made it a reality. Working with Mr. Nookala has been a wonderful experience. He was clear, concise, and guided us in the right direction whilst patiently answering all our concerns. I would recommend Mr. Nookala to friends and family without any hesitation. Thank you!

Rahul Nand
Vancouver, BC, Canada

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