How the IAD Appeal Process Different From the Judicial Review

[Jasnoor]

I sponsored my wife from India. She was interviewed and her application has been refused by New Delhi visa post. I have searched that I can appeal or submit new sponsorship application. My wife’s uncle resides in Calgary who suggests me we should go to Federal Court for Judicial Review. What is the difference between process of both appeal and judicial review?

[Rajpal (Admin)]

When a case is refused, the applicant can seek a remedy from the law by appealing the decision of the officer to a higher authority. In regards to Canadian immigration matter, a decision can be appealed either to the Immigration Appeal Division (IAD) or to the Federal Court of Canada for Judicial Review, depending on the type of immigration matter.

The following matters can be appealed to the IAD:

1) Sponsorship refusal

2) Removal orders

3) Residency obligations

You have 30 days to file a notice of appeal to the IAD after receiving your refusal letter. If the appeal is dismissed (refused) at IAD, the applicant has 15 days from the date he or she received the refusal to file an Application for Leave and for Judicial Review to the Federal Court of Canada to review the correctness of the decision made by IAD.

Unlike Immigration Appeal Division, any decision made by IRCC can be judicially reviewed. The following are some examples of immigration matters that can be judicially reviewed:

1) Work permit

2) Study permit

3) Investor programs

4) H&C applications

5) Spousal sponsorship appeals

6) Family class sponsorship appeals

7) Citizenship appeals

8) Residency obligation appeals

9) Deportation appeals

10) Refused Refugee Claims

Unlike IAD, the Federal Court cannot approve your visa or application – rather the Federal Court can only determine whether the previous decision of the immigration officer was reasonable and correct in law. If it is proven in Federal Court that the decision was unreasonable and incorrect in law, your case will be sent back to be examined by a different Board or Officer for re-determination.

Moreover, the hearing that takes place at IAD is a ‘De novo’ hearing. This means that you may submit fresh new evidence during the appeal process to support your case. Whereas in Judicial review, the judge will render their decision based on the evidence that was available to the immigration officer at the time the decision was made on your case.