Notice – The Immigration Appeal Division Introduces Administrative Changes to Appeal Process

1. Seek confirmation from the appellant of their intent to proceed

There are a significant number of appeals that have been in the IAD inventory for a long period and where the appellant has not been in contact with the IAD.

Beginning July 2, 2015, the IAD will identify older cases where there has been no communication with the appellant or their counsel for some time. The IAD will send a request for confirmation of intent to proceed and reply form to the appellant. The appellant must complete, sign and return the form to the IAD within a specified timeframe.

If there is no response from the appellant, the appeal will be given to a Member to decide whether or not the appeal should be declared abandoned in accordance with subsection 168(1) of the Immigration and Refugee Protection Act (IRPA). If the Member decides the appeal has been abandoned there will be no further notice to the appellant, as the appeal has ended.

2. Move from a two-step to a one-step abandonment process where there is no reason to believe an appeal is being pursued

Right now, in cases where an appellant does not appear at a hearing or mediation despite having been given notice, or fails to respond to correspondence from the IAD despite being directed to do so, the IAD ordinarily schedules a show cause hearing. Often this results in the IAD scheduling a show cause hearing even though it is clear that the appellant has no intention to proceed with their appeal.

Beginning July 2, 2015, the IAD will move to a default position of a one-step abandonment process. This will allow the Division to concentrate its efforts on appeals which are likely to proceed.

The move from a two-step to a one-step abandonment process does not mean that the IAD will stop using the show cause hearing in all cases. It just means that the IAD will use its discretion to decide when to send an appeal to a show cause hearing. This change will include the following safeguards:

• A 30-minute grace period when an appellant does not appear at a hearing or mediation;
• The factors the IAD will use in exercising its discretion include, but are not limited to the following:
  • There is reason to believe the appellant may not have been given notice, e.g. the IAD sent the correspondence to the wrong address; there were multiple addresses on file but the IAD only sent the Notice to one address; the IAD sent the Notice c/o counsel but counsel is no longer the appellant’s counsel.
  • There is a recent pattern of responding to the IAD and the appellant’s current failure to respond is out of character with how the appellant has pursued the appeal to date.
  • There is reason to believe that the appellant may not have the mental capacity to manage their appeal and no designated representative has been appointed.

3. No reasonable prospect of success of the appeal

The IAD often receives notices of appeal for cases that are outside the IAD’s jurisdiction. Right now both parties are given the opportunity to make submissions on the question of whether the IAD has the authority to deal with the appeal.

Beginning July 2, 2015 the IAD will no longer automatically ask the Minister to file submissions. It will only do so if the appellant can first show that the IAD may have authority to deal with the appeal. If the IAD decides to seek submissions from the Minister, it will inform both the Minister and the appellant. The appellant will then have the right to reply to the Minister’s submissions. If the IAD decides that it does not have the authority to deal with the appeal, the appeal will be dismissed.

Some examples of such appeals are:

• Persons with no right of appeal under (IRPA, subsection 63)
• Inland Sponsorship Refusal (IRPA, subsection 63(1))
• A foreign national or a permanent resident who has been found inadmissible on the grounds of serious criminality (IRPA subsection 64(2))
• Persons not a member of the family class, e.g. siblings, nieces, nephews (Immigration and Refugee Protection Regulations (IRPR) 117(1))
• Excluded relationships: spouse under 18 years of age (IRPR 117(9)(a)); family member not examined in prior application (IRPR 117(9)(d))
• The person is not a sponsor, i.e. the person is not a Permanent Resident or Canadian Citizen (IRPR 130(1)); or the person became a Permanent Resident after being sponsored and has not been a Permanent Resident for at least 5 years (IRPR 130(3))
• The person was found inadmissible on the ground of misrepresentation, unless the foreign national in question is the sponsor’s spouse, common-law partner or child (IRPA, subsections 40 and 64(3))
• Appeal related to the expiry of an unused PR visa (IRPA, subsection 63(1))
• Concurrent processing of PR applications for Refugee’s overseas family members (IRPA, subsection 63(1))