The questions and answers below are to help you prepare for your appeal hearing. The following information is limited and general only. It is not complete legal advice. Please note that the new Immigration and Refugee Protection Act has been passed and is expected to be in force later in 2002, so the information in this guide may not apply to later cases.
Where will my appeal hearing take place?
Your appeal hearing will take place at the Immigration and Refugee Board. The Immigration and Refugee Board is an independent tribunal. It is not part of Citizenship and Immigration Canada (CIC).
Who will decide my appeal?
A Member of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board will decide your appeal.
Who will be at my appeal hearing?
In addition to you and the IAD Member who will decide your appeal, your counsel, if you chose to be represented, will be present. There will also be counsel for the Minister of Immigration (CIC) who may provide evidence, question you and other witnesses, and make arguments against your appeal. Any witnesses that you or the Minister's counsel bring to testify (give oral evidence) will also be at the hearing. An interpreter will be there for you or any of your witnesses if you have asked for one. Members of the public are also allowed to attend.
Do I need someone to represent me in my appeal?
You do not have to have someone represent you, but you may if you think that this will help your appeal. There are often questions of law that need to be argued in the appeal and you have to make sure that your case is supported by enough evidence. You should also know that Minister's counsel will be at your hearing to question you and other witnesses, and make arguments against your appeal. If you have someone represent you, this can be a lawyer (a person with legal training and a licence to practise law) or a consultant, friend, or relative. That person must be available and prepared on the date of the appeal hearing.
How will I know when my appeal hearing will take place?
You will receive a letter from the IAD to appear at an assignment court on a specific date and time. You should be there on the date and at the time stated in the letter. At the assignment court, an IAD Member will ask you and the Minister's counsel questions to make sure that your case is ready to be scheduled. If the Member is satisfied that your appeal is ready to be scheduled, you will be told the day your appeal hearing will take place and you will be given a written notice of that date.
What will happen if my counsel and I cannot appear on the appeal hearing date?
When an appeal hearing date is set, you should be ready for the hearing on that date. If you believe that you will not be ready, you may ask for a postponement (that the hearing be delayed to a later date) by sending a letter explaining your situation to the registry office of the Immigration Appeal Division, and a copy to the Minister's counsel, Citizenship and Immigration Canada, Hearings and Appeals. The addresses of the IAD regional office and the CIC regional office are in the material that the IAD sends to you after you have filed your appeal. In your letter you must explain why you want your appeal hearing to be postponed. Your hearing will only be postponed for a very good reason. If the IAD does not reply, or if the IAD refuses your request, you must appear on the hearing date prepared for your appeal hearing. If you do not appear, your appeal may be dismissed.
You may ask for a postponement at your hearing, but it will not be allowed unless you can show there is a very good reason for your hearing not going ahead that day.
2. PREPARING FOR YOUR APPEAL
What must I show to win my appeal?
It is your responsibility to show that the removal order is not legal or that having regard to all the circumstances of the case you should not be removed from Canada.
There are three possible results for your appeal. The IAD Member may:
- Dismiss your appeal;
- Allow your appeal and cancel the removal order; or
- Put the removal order on hold (stay) for a period of time. If that happens you will have to follow the conditions which the IAD Member will set.
To show that the removal order is not legal you must show that:
- You married your sponsor within 90 days of your landing in Canada and that you provided Immigration with proof of your marriage within 180 days of your landing.
To decide this issue the IAD Member may consider evidence about:
- Your marriage and the proof of it that was provided to Immigration; and
- Any other information that may help the IAD Member decide this issue.
All the Circumstances of the Case
Even if your removal order is legal, you may still win your appeal by showing that in all the circumstances of the case you should not be removed from Canada. The IAD Member may consider evidence about:
- Whether you made sincere efforts to marry your sponsor;
- Why you did not marry your sponsor;
- How long you have been in Canada;
- How much you are established in Canada;
- How deportation from Canada will affect you, including any hardship you would have in the country you are likely to be sent to;
- Whether you have family in Canada and the impact your deportation would have on them;
- The support you have in Canada from family or other people in the community;
- The best interests of any children you may have; and
- Any other circumstances that help the member decide your appeal.
Do I need to provide any documents?
Documentary evidence can be very important in helping you to win your appeal. To show that the removal order is not legal, you may want to provide documents to show that you fulfilled the terms and conditions of your landing (such as a copy of your marriage certificate and documents to show that you told Immigration of your marriage within 180 days of your landing).
To show that in all the circumstances of the case you should not be removed from Canada you may wish to provide documents such as: letters from family, friends, employers and proof of employment, education and/or community service.
If you would like to provide documents, you must make two copies of each document (including any photographs or videocassettes). You must send one copy to the registry office of the Immigration Appeal Division, and send one copy to the Minister's counsel, Citizenship and Immigration Canada, Hearings and Appeals. The addresses of the IAD regional office and the CIC regional office are in the material that the IAD sends to you after you have filed your appeal. The documents must be received at least 20 days before the hearing. If you do not do this (called "disclosure"), the IAD Member may decide not to permit your documents to be used in your appeal hearing.
If your documents are not in English or French, they must be translated, and the translations must be sent along with the copies of the documents to the IAD and to the Minister's counsel. The person who translated the documents should be a certified translator and attach a statement certifying that the translation is accurate.
Even if you have provided copies of your documents before the hearing, you should bring the original documents to the hearing if you have them.
Do I have to bring witnesses?
You do not have to bring witnesses, but you may if you think this will help show that the removal order is not legal or that having regard to all the circumstances of the case you should not be removed from Canada. If you would like to bring witnesses, they must be prepared to answer questions at your hearing. You must let the IAD and the Minister's counsel know at least 20 days before the hearing who you will be bringing as a witness and why that witness will be testifying at your appeal hearing (by completing the form that will be given to you for this purpose).
What do I do if I need an interpreter?
If you or any of your witnesses need an interpreter, you must let the IAD know at the assignment court or at least 15 days before your appeal hearing.
3. YOUR APPEAL HEARING
What will happen at my appeal hearing?
- You will testify.
If you have counsel, your counsel will begin by asking you questions so that you can give evidence to show that the removal order is not legal or that having regard to all the circumstances of the case you should not be removed from Canada. If you do not have counsel, you may tell the IAD Member what you think is important or you may ask the Member to ask you questions that the Member thinks are needed to decide your appeal. The Minister's counsel will also question you on the evidence you have given at the hearing because the Minister's counsel is there to argue against the appeal.
- Witnesses will testify.
After your testimony, your witness or witnesses will testify. Any witness you bring to the hearing will usually be asked to stay in the waiting room and not join the hearing until after you have testified. The witness then will be called to answer questions. Your counsel may question the witness or, if you do not have counsel, you may question the witness or ask the IAD Member to do it. The Minister's counsel will also be able to question the witness. The Minister's counsel can also bring witnesses to testify. You have the right to question any witnesses brought by the Minister's counsel.
- Arguments will be made.
After you and the witnesses have testified, the IAD Member will ask you to explain why you think the evidence shows that the removal order is not legal or that having regard to all the circumstances of the case you should not be removed from Canada. The Minister's counsel will also be asked whether he or she thinks you have proven your case. You will then be asked to respond to the submission of the Minister's counsel.
When will I know the decision in my appeal?
The IAD Member may be able to decide your appeal and give reasons for the decision at the end of the hearing. If not, the Member will tell you that the decision and reasons will be sent to you by mail at a later date, usually within 90 days of the hearing.
4. MORE INFORMATION
If you would like more information, you may visit the IRB's Documentation Centre at our offices. There you will find the following information:
- SPONSORSHIP APPEALS
This paper describes how different types of sponsorship appeals are decided.
- REMOVAL ORDER APPEALS
This paper describes how different types of removal order appeals are decided.
- PRACTICE NOTICE: Scheduling of Appeal Hearings in the Immigration Appeal Division (IAD) of the Immigration and Refugee Board
This notice sets out the policy and procedure of the IAD concerning how appeals are scheduled to be heard.
- PRACTICE NOTICE: Postponements and Adjournments in the Immigration Appeal Division (IAD) of the Immigration and Refugee Board
This notices sets out the policy and procedures for postponements and adjournments requests of appeal hearings.
This is a publication of summaries of selected recent immigration and refugee law decisions since May 1991.
- IMMIGRATION ACT and IMMIGRATION APPEAL DIVISION RULES