THE IMMIGRATION APPEAL DIVISION (IAD)
The Immigration Appeal Division is an administrative tribunal and a division of the Immigration and Refugee Board. The Immigration Appeal Division is a court of record and has, within the limits of its statutory mandate, all the powers of a superior court of record. The Immigration Appeal Division is not bound by any legal or technical rules of evidence and can base its decisions on evidence that it considers credible and trustworthy. The Immigration Appeal Division rules governing the Immigration Appeal Division are set forth under regulations made under the Immigration Refugee Protection Act (IRPA).
WHAT IS THE ROLE OF THE IAD?
The role of the Appeal Division is to conduct a full hearing of the merits of the issue under appeal, which includes taking evidence that might have been available at the time the decision of first instance was taken but was not adduced, and taking evidence which has arisen subsequent to the initial decision being rendered. In essence, the appellant receives a second chance to win on the merits.
CAN THE IAD CONSIDER CONSTITUTIONAL QUESTIONS?
WHAT HAPPENS IF AN APPEAL IS ALLOWED?
The decision is set aside and the Immigration Appeal Division either substitutes its decision, or refers the matter back to the decision-maker for reconsideration.
When Does a Sponsorship Appeal Arise?
These appeals may arise when sponsored applications for members of the family class are refused on the grounds that the sponsor does not meet the requirements for sponsorship under the Act or regulations, or where the relationship to the sponsor is not considered genuine in the case of an adoption, marriage, common law or conjugal relationship.
Who Has the Right of Appeal?
It is the sponsor who has the right of appeal, not the foreign national who was denied the visa.
When is There No Right of Appeal?
This occurs usually in two situations. First, where the decision was based on a finding of inadmissibility for misrepresentation, unless the foreign national is the sponsor's spouse, common-law partner or child. Second, where the foreign national has been found to be inadmissible on security grounds, violating human or international rights, organized criminality, or serious criminality.
When Do H&C Grounds Apply?
These only apply where the sponsored foreign national is a member of the family class and the sponsor is a sponsor within the meaning of the regulations.
REMOVAL ORDER APPEALS
Who May Apply?
A permanent resident of Canada, a protected person, or a foreign national with a permanent resident visa who has been ordered removed from Canada, may appeal the removal order to the Immigration Appeal Division.
When is there No Right of Appeal?
There is no appeal right if the person is inadmissible on the grounds of serious criminality, organized criminality, security grounds, or for violations of human or international rights.
Refugee Appeals are considered by the Refugee Appeal Division.