Appeals and court reviews

A person who filed a sponsorship application for a member of the family class may appeal a decision not to issue the foreign national a permanent resident visa to the Immigration Appeal Division (IRPA 63(1)). The notice of appeal and accompanying documents must be received by the IAD no later than 30 days after the day the appellant receives the officer's decision and the written reasons, if any, for the refusal (IAD Rules, 2022, r. 16(a)). Only the sponsor can appeal; refusals of temporary resident visas cannot be appealed to the IAD (IRB). Grounds: error of law or fact, breach of natural justice, or sufficient humanitarian and compassionate considerations taking into account the best interests of a child (IRPA 67(1)).

No appeal lies to the IAD by a foreign national, their sponsor or a permanent resident found inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality or organized criminality (IRPA 64(1)); for this purpose serious criminality means a crime punished in Canada by a term of imprisonment of at least six months, or described in 36(1)(b) or (c) (64(2)). No sponsorship appeal lies from a refusal based on misrepresentation unless the foreign national is the sponsor's spouse, common-law partner or child (64(3)). In a family class appeal, the IAD may consider humanitarian and compassionate grounds only if it finds the foreign national is a member of the family class and the sponsor is a sponsor within the meaning of the Regulations (IRPA 65).

A permanent resident or protected person, or a foreign national holding a permanent resident visa, may appeal a removal order made under IRPA 44(2) or at an admissibility hearing to the IAD (IRPA 63(2)-(3)), subject to the s. 64 bars. The notice of appeal must be received by the IAD no later than 30 days after the appellant receives the removal order, unless it was given to the Immigration Division member at the end of the admissibility hearing (IAD Rules, 2022, rr. 14, 16(b)). The IAD may allow the appeal, or stay the removal order on humanitarian and compassionate grounds taking into account the best interests of a child (IRPA 66-68).

A permanent resident may appeal to the IAD against a decision made outside Canada on the residency obligation (IRPA 63(4)). The notice of appeal must be received by the IAD no later than 60 days after the appellant receives the officer's decision and the written reasons, if any (IAD Rules, 2022, r. 16(c)). The residency obligation requires at least 730 days in each five-year period physically present in Canada or in listed equivalent situations (e.g., accompanying a Canadian-citizen spouse/partner or parent abroad, or full-time employment abroad with a Canadian business or public service) (IRPA 28(2)(a)). The IAD may allow the appeal on legal/factual error or sufficient H&C grounds (IRPA 67(1)).

Judicial review of any matter under IRPA is commenced by an application for leave to the Federal Court. It may not be made until any IRPA right of appeal is exhausted. Notice of the application must be served and the application filed in the Federal Court Registry within 15 days (matter arising in Canada) or 60 days (matter arising outside Canada) after the day the applicant is notified of or otherwise becomes aware of the matter; a judge may extend the time for special reasons; there is no appeal from the leave decision (IRPA 72). If leave is granted, the hearing is held no sooner than 30 and no later than 90 days after leave unless the parties agree to an earlier day; an appeal to the Federal Court of Appeal requires a certified serious question of general importance (IRPA 74). Under the Federal Courts Citizenship, Immigration and Refugee Protection Rules, the filing fee is $50 (r. 23), any request to extend the time must be made in the application for leave (r. 6(1)), and the applicant's record is due within 30 days after filing the application or, if the tribunal's written reasons had not been received, within 30 days after receiving them (r. 10(1)).

A removal order is stayed if the person applies for leave for judicial review under IRPA 72 of a Refugee Appeal Division decision that rejects (or confirms rejection of) a refugee claim, until the leave or judicial review (and any further appeals) are finally disposed of (IRPR 231(1)). No automatic stay applies if the person is a designated foreign national, is removable for serious criminality, resides or sojourns in the United States or St. Pierre and Miquelon and was reported on entry, or applies for an extension of time to file (231(2)-(4)). Other stays: during PRRA (IRPR 232) and where the Minister grants an H&C/public-policy stay (IRPR 233).

The time limit to file an appeal to the Refugee Appeal Division against an RPD decision is 15 days after the day the person receives written reasons for the decision, and the time limit to perfect the appeal is 30 days after receiving the written reasons; the RAD may extend each limit for reasons of fairness and natural justice (IRPR 159.91). The RAD decides within 90 days of perfection where no hearing is held, or as soon as feasible (IRPR 159.92). New evidence on appeal is limited to evidence that arose after the rejection or was not reasonably available (IRPA 110(4)). In practice the RAD allows 45 days to perfect: its practice notice, in force since September 28, 2020 and until further notice, extended the time limit for perfecting an appeal to 45 days after receipt of the RPD's written reasons (deemed received seven days after they are mailed), and the IRB's Appellant's Guide states that the appellant's record must be provided no later than 45 days after the reasons are received. An appellant who needs more time must apply under the RAD Rules; the 15-day limit for the notice of appeal is unchanged.

No appeal to the RAD may be made in respect of: (a) a decision on the claim of a designated foreign national; (b) a determination that a claim has been withdrawn or abandoned; (c) a rejection stating the claim has no credible basis or is manifestly unfounded; (d) subject to the regulations, a claim by a person who came directly or indirectly from a designated safe third country (the US) and whose claim was eligible only because of an exception to the STCA; (d.1) a decision on a claim by a national of a country designated under IRPA 109.1 on the day of the decision; (e) a decision on a Minister's application for cessation; or (f) a decision on a Minister's application to vacate (IRPA 110(2)). S.C. 2026, c. 4 will repeal (d.1) (not yet in force).

IRCC states there is no formal process to appeal decisions on temporary residence applications; a person may reapply, but should only do so if their situation has changed significantly or they have new information addressing the refusal reasons, or may file an application for leave and judicial review with the Federal Court if they believe the decision is unreasonable or there was an error in law or fairness. No statutory reconsideration procedure for IRCC officer decisions was found; any reconsideration request is informal and discretionary.

At any time before the RAD or Federal Court has made a final determination, a claimant may apply to the RPD to reopen a claim that was decided or declared abandoned; the RPD must not allow the application unless a failure to observe a principle of natural justice is established, and it considers timeliness and why the claimant did not appeal or seek judicial review (RPD Rules, r. 62). The RAD has a parallel rule for appeals (RAD Rules, r. 49). The IAD may reopen an appeal, on application by a foreign national who has not left Canada under a removal order, if it failed to observe a principle of natural justice (IRPA 71; IAD Rules, 2022, rr. 98-100).