Refusals

If your case has been refused, there are many avenues of redress. Which avenue you choose depends on the circumstances of your case. You may seek redress from Federal Court, the Immigration Appeal Division, seek Temporary Resident Permits to overcome your inadmissibility, or reconsideration of your case by immigration officials. We have the expertise to handle them all.

You should keep in mind that there are very specific time lines you must meet in your dealings with the Federal Court, the Refugee Appeal Division and the Immigration Appeal Division.

Judicial Reviews/Federal Court

Immigration Litigation at the Federal Court

The Federal Court can review almost any decision made under the Immigration and Refugee Protection Act, as well as the Citizenship Act. This is the core of our practice.

A great number of our cases are matters referred to us by practitioners, whose cases have been through the immigration process and are seeking an appeal. We appear on their behalf at the Federal Court. Our services include appearing in the following matters:

    •    Judicial Reviews of any matter, question or decision under the Immigration and Refugee Protection Act and its Regulations
    •    Motions for Stays of Deportations
    •    Citizenship Appeals Applications for Mandamus Orders
    •    Review of Security Certificates
    •    Class Actions

Timelines are relatively short when dealing with Federal Court, so the advice of experienced counsel  should be sought quickly.

Removals / Deportations

Similar to Refusals there are several avenues to fight deportation, in many cases it comes down to seeking a Stay of Removal Order from the Federal Court, however, in other cases it may be filing an Appeal at the Immigration Appeal Division, or a Pre-Removal Risk Assessment, or requesting a deferral from the CBSA.

If you are facing removal, you should seek the advice of an immigration barrister, as soon as you are able, as there are timelines that must be complied with. This is particularly true if you need a Stay Order from the Federal Court, as there are timelines for starting the Judicial Review, as well as rules for filing the Stay Motion so that it may be heard prior to removal.

Inadmissibility

This means that a person is not allowed to enter Canada. If the person is already in Canada, such

a finding may lead to removal. If a person is already a Permanent Resident, such a finding may lead to the loss of permanent resident status, and subsequently lead to removal.

There are many grounds of inadmissibility. They included Security (S. 34 of the IRPA), Human Rights Violations (S. 35), Criminality (s. 36), Organized Criminality (s. 37),  Health (s.38),  Financial ( S. 39), and Misrepresentation ( s.40).

Whatever grounds of inadmissibility you may be facing, our firm has experience, knowledge and success in dealing with these areas of inadmissibility.

Humanitarian & Compassionate Applications

S. 25 is a very important section of the Act, as it provides an opportunity for many cases, which otherwise would not have been approved to be allowed on humanitarian and compassionate grounds. Lee & Company has helped hundreds of deserving families gain status by application of this section.

25 (1) Humanitarian and compassionate considerations — request of foreign national Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.

Temporary Resident Permit

The Temporary Resident Permit, S. 24 of the IRPA, was formerly called the Minister’s Permit.  It allows persons who are otherwise inadmissible or in some other way “does not meet the requirement of the Act” to be allowed into Canada. It is important to note that while on the surface it sounds similar to s. 25, it is distinct in nature and applicability.  Our firm again has extensive experience and success in dealing with s.24 applications.

Mandamus

This is a type of order that can be sought from the Federal Court, when the processing of an application or matter has been longer than the time frame within which the process should reasonably have been completed, and the authorities have failed to give a satisfactory justification for the delay;  see Conille v. Canada (Min. Of Citizenship & Immigration) (1999) 2 FC 33, 159 FTR 215, 15 Admin. LR (3d) 157 (TD).

To get such an order it must be proven that the government has a public legal duty to act;  This duty was owed to the Applicant; The Applicant has satisfied all conditions precedent giving rise to the duty; there was a prior demand for performance of the duty; there was a reasonable time to comply with the demand; there was a subsequent refusal which can be either expressed or implied;   the order sought will be of some practical value; there is no equitable bar to the relief sought; the balance of convenience favors the applicant;  Therefore the conditions  set out in Apotex Inc. v. Canada (A.G.), (1994) 1 F.C. 742 (C.A.), affirmed (1994) 3 S.C.R. 1100 have been satisfied.

Refugee/Asylum

Refugees are persons who “ by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion” “ is outside their countries of nationality and are unable or, by reason of that fear, unwilling to avail themselves of the protection of each of those countries” ( see S. 96 of the IRPA). Persons who are described in such or similar circumstances can ask for protection and their claims are heard by the Refugee Protection Division of the Immigration and Refugee Board.

Our firm has successfully represented hundreds of clients, from all over the world in their asylum claims. We also represent clients who are protecting their immigration status against cessation and vacation proceedings brought by the Minister.

With some restrictions, people facing removal can also seek protection through the Pre-Removal Risk Assessment Process

Refugee Appeals

The Refugee Appeal Division (RAD) was launched on December 15, 2012.  Before it was implemented, the only forum to “appeal” the refusal of a refugee decision by the Refugee Protection Division was by Judicial Review at the Federal Court. However, s. 110(1) of the IRPA now allows;

Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection.

It is important to note that some decisions that cannot be appealed to the RAD may still be “appealed” by judicial review to the Federal Court. 

Also, a refusal of the appeal at the RAD itself can be challenged at the Federal Court.

Immigration Appeals Divsion

The Immigration Appeal Division of the Immigration and Refugee Board deals with a wide array of matters. This includes overseas refusal of Family Class sponsorship, both parental and spousal, and “removal orders” made against permanent residents. The following is a list of some of the appeals that are heard by the division:

•    Member of the Family Class Sponsorships:
•    Parental sponsorship
•    Spousal sponsorship
•    Adoption cases;
•    Removal Order Appeals:
        •    Removal orders against permanent residents made at Admissibility Hearings (finding Permanent Resident is inadmissible on various grounds, for more details see Inadmissibility section)
        •    Removal orders made at Examinations (at the port of entry)
        •    Decisions made outside Canada or Residency Obligations (Permanent Resident who do not meet residency obligations)
•    Defence of appeals made by the Minister of the decisions made by the Immigration Division at an Admissibility Hearing
•    Alternate Dispute Resolution Conferences
•    Applications pursuant to Rule 42, 43, 46, 49 and 51

While you may believe that the Appeal process at the Immigration Appeal Division is informal, the reality is that an Appeal before this Tribunal is very much like a trial before any other court (the Immigration Appeal Division is a Court of Record).  Our Counsels have thousands of hours of experience in such litigation.