Understanding the Right of Appeal Under Division 7 of the Immigration and Refugee Protection Act: A Guide for Immigrants

Navigating the complex terrain of immigration law can be overwhelming, especially when it comes to the appeals process. Division 7 of the Immigration and Refugee Protection Act (IRPA) is a crucial part of Canada’s immigration system, outlining the right to appeal in various circumstances. In this blog, we will break down what Division 7 covers, who is eligible to appeal, and provide advice on whether or not you should proceed with an appeal.

What Is Division 7 of the IRPA?

Division 7 of the Immigration and Refugee Protection Act governs the right to appeal decisions made regarding immigration matters. It primarily focuses on the decisions that affect permanent residents, foreign nationals, and sponsors. The appeal process is designed to offer a second chance for individuals who have had an application refused, faced a removal order, or been deemed inadmissible.

Key sections in this division include the right to appeal removal orders (Section 63), sponsorship refusals, and other matters such as misrepresentation (Section 64). This appeals process is typically overseen by the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB).

Who Can Appeal Under Division 7?

According to Section 63 of IRPA, the following groups generally have the right to appeal:

1. Permanent residents and protected persons: Individuals who have been issued a removal order by an immigration officer.
2. Sponsors: Those who have had their sponsorship application to bring a family member to Canada refused.
3. Foreign nationals: In certain cases, they can appeal removal orders.
4. Certain other applicants: For example, those who are affected by a decision of the Immigration Division or Citizenship and Immigration Canada (CIC) in specific contexts.

Who Cannot Appeal Under Division 7?

While Division 7 offers recourse for many individuals, some groups do not have the right to appeal. Section 64 specifies that individuals who are deemed inadmissible due to serious criminality, organized criminal activity, security reasons, or violations of human rights are not eligible for appeal. Moreover, the inadmissibility must meet a specific threshold for serious criminality, such as a sentence exceeding six months.

Grounds for Appeal: What Can Be Appealed?

You may file an appeal under Division 7 for a variety of reasons, including:

1. Error in law or fact: You believe the decision was based on incorrect legal interpretations or facts.
2. Misrepresentation: If you think you were unfairly accused of providing false or misleading information during your application process.
3. Humanitarian and compassionate considerations: The appeal may argue that the best interests of any children involved or other compassionate grounds were not adequately considered.
4. New evidence: If new facts have arisen since the original decision, they can potentially be considered during the appeal.

Advice: Should You Appeal Your Case?

The decision to appeal is not one to be taken lightly. It can be a time-consuming and emotionally draining process. Here are some factors to consider before filing an appeal:

1. Strength of Your Case: If the original decision involved clear errors in law or fact, it may be worthwhile to appeal. For example, if a visa officer misunderstood key elements of your case, this is a strong ground for appeal.
2. Humanitarian Grounds: If you can demonstrate that the decision negatively impacts the best interests of children or other humanitarian considerations, an appeal may be appropriate.
3. Serious Criminality: If you have been declared inadmissible on the grounds of serious criminality, the chances of a successful appeal are significantly lower. In such cases, it may be more prudent to focus on alternative legal avenues, such as applying for a pardon or clemency.
4. Costs and Time Involved: Appeals can be expensive and time-consuming. Consider whether you have the financial and emotional resources to see the process through. In some cases, it may be more practical to reapply or explore other immigration pathways.
5. New Evidence: If new evidence has come to light that significantly strengthens your case, an appeal may be warranted. However, this evidence must be material to the original decision.
6. Seek Professional Advice: It’s highly recommended to consult with a good immigration lawyer before proceeding with an appeal. An experienced lawyer can provide you with an objective assessment of your chances of success, helping you make an informed decision.

Appeal Outcomes: What to Expect

If you proceed with an appeal, several outcomes are possible:

1. The appeal is allowed: The Immigration Appeal Division may allow your appeal, meaning that the original decision is overturned, and the case is returned to the relevant immigration authorities for reconsideration.
2. The appeal is dismissed: If your appeal is dismissed, the original decision stands, and you may be required to leave Canada if a removal order has been issued.
3. Stay of Removal: In some cases, the IAD may issue a stay of removal while the appeal is being processed, allowing you to remain in Canada temporarily until a final decision is made.

Conclusion

The right to appeal under Division 7 of the Immigration and Refugee Protection Act provides an essential safeguard for individuals facing adverse immigration decisions. However, the decision to appeal must be approached carefully, with a full understanding of the legal framework and potential consequences.

A good immigration lawyer can help you navigate this complex process. If you are considering an appeal, we encourage you to seek legal advice from an experienced professional who can assess your situation and guide you through the next steps.