Appeals and Judicial Review

All immigration appeals under the IRPA are made to the Immigration Appeal Division (IAD). A citizenship appeal, however, is made at the Federal Court and a refugee appeal is made to the Refugee Appeal Division (RAD). A case that has gone before the Federal Court can be appealed to the Federal Court of Appeal (“FCA”) if certain conditions are met. Cases before the FCA can be appealed to the Supreme Court of Canada (“SCC”), if certain conditions are met.  There are no right of appeal other than the rights of appeal identified in the IRPA. An immigration appeal is a de novo hearing. This means that the decision-maker will review the evidence afresh and new evidence can also be presented during an immigration appeal. The appellant (the person making the appeal) is present during an immigration appeal, and generally, is the primary witness. Finally, the IAD can in many cases (but not all) make a decision in equity. That is, the IAD can allow an appeal if there are sufficient humanitarian and compassionate grounds in certain circumstances.If there is no right of appeal identified in the IRPA, then the remedy to challenge a decision made under the IRPA and/or Regulations is an application for leave to judicially review to the Federal Court. The term “leave” means “permission.” Thus, the Federal Court will only hear a judicial review if leave is granted. During a judicial review, the Federal Court will review a decision-maker’s decision and will determine if it was correct or reasonable depending on the issue. The Federal Court will not consider new evidence and will not hear from the applicant meaning that the applicant will not testify. The Court will only hear the arguments advanced by the lawyer. The Federal Court has no equitable jurisdiction. This means the Federal Court cannot grant remedy on the basis of humanitarian or compassionate reasons. A Judicial review is only done by the lawyer.  Appeals by refugee claimants to the RAD are somewhat of a hybrid between an appeal and a judicial review. The RAD can consider new evidence and may even hear from the claimant, which are similar to IAD appeals. Some of the Important Case Laws for Judicial Review are:•Zhang v Canada 2005 FC 1313
•Castellon Viera v Canada 2012 FC 1086

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