Immigration Appeal Division (IAD) Rules Summary
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1- Appeal by a Sponsor:
Time limits for Notice of Appeal
● Notice of Appeal and officer’s written reasons ------- 30 days
● Minister’s appeal record submission to appellant and IAD ----- 60 days.
2A- Appeal from a removal order made at an admissibility ID hearing:
Note: FN does not have the right to appeal to IAD --- only FN who holds a
permanent resident visa, a permanent resident, or a protected person has
access to IAD.
Time limits for Notice of Appeal
• By hand to ID at the end of the admissibility hearing
● Notice of Appeal and removal order to IAD ------- 30 days
● Appeal record by ID (to the IAD, minister, and Appellant) ---- 30 days
2B- Appeal from a Removal Order Made at an Examination – NO FN access to
IAD:
Time limits for Notice of Appeal
● Notice of Appeal and removal order to IAD ------- 30 days
● Appeal record by minister ---- 30 days
3- Residency Obligation (RO – A28) appeal:
Time limits for Notice of Appeal
● Notice of Appeal ------- 60 days (from outside of Canada)
● Appeal record by minister ---- 60 days
● NOTE: Notice of Appeal ------- 30 days (after examination at POE or after PR
card renewal refusal – REMOVAL ORDER Hearing not a RO hearing)
● Appeal record by minister ---- 30 days (for Removal order made at the
examination)
4- Appeal by minister from a decision of ID admissibility hearing:
Time limits for Notice of Appeal
● Notice of Appeal (to ID, IAD, and respondent) ------- 30 days
● Appeal record by ID ---- 30 days
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Contact information time limits:
• Contact info. With the notice of appeal IF the person is appellant
• for the person/respondent if the minister is the appellant ----- 20 days
Counsel of Record:
Rules are same as listed in ID rules with one notable mentioning that If counsel’s
request is received by the recipients two working days or less before the date of a
proceeding, counsel must appear at the proceeding and make the request orally.
Request to be removed - Counsel:
To be removed as counsel of record, counsel for a party other than the Minister must
first provide the person represented and the Minister a written request to be removed.
The counsel must then provide the written request to the Division no later than three
working days before the date fixed for the next proceeding.
Division’s permission required:
Counsel remains counsel of record unless the Division grants the request to be
removed.
Alternative Dispute Resolution – ADR (Informal Resolution Process)
Note: An ADR is suggested only for appropriate cases.
An ADR is an informal meeting between you, the Minister’s Counsel and an Early
Resolution Officer (ERO) to discuss the case, clarify the issues and encourage both
sides to agree on a decision. An ERO may contact you or your counsel to obtain
additional information regarding your appeal and discuss your case. This will help
determine if your appeal can be resolved without an oral hearing.
If your appeal is resolved at the ADR, there is no need for a hearing. You will receive a
decision confirming that your case is resolved.
• Alternative Dispute Resolution (ADR) Process – resolving an appeal without a
hearing. The division assigns a member or any other person to act as Dispute
Resolution (DR) officer. A member who acts as a dispute resolution officer for
an appeal must not hear that appeal. The information shared in the ADR is
confidential (It must not be disclosed later in the appeal) but not the
agreement reached through ADR.
ADR Participants
● Appellant,
● and your counsel, if you have one
● An interpreter, if you have requested one
● The Minister's counsel. This person represents either the Minister of Immigration,
Refugees and Citizenship Canada or the Minister of Public Safety. It depends on
what your appeal is about.
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● A representative from the IAD called an Early Resolution Officer (ERO). This
person is neutral and unbiased. An ERO is there to facilitate the conference.
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TIME LIMITS (IAD)
● Contact information time limits:
• Contact info. With the notice of appeal IF the person is appellant
• for the person/respondent if the minister is the appellant ----- 20 days
• Time limits to change the choice of language – 45 days before the hearing
• Time limits: Need for an interpreter – 20 days before the hearing
Disclosure of evidence (Important)
• Time limits: Documents disclosure - 60 days before the hearing
• Time limits: Written statement for intend of using NO document: 60 days
▪ if the document is provided in response to evidence provided by other party
– 30 days before the hearing
Failure to disclose - NEW
If a party does not provide any documents or notify the IAD that no documents
are being provided, the Rules set out new consequences:
● declaring the appeal abandoned
● fix a date and time for the proceeding and start the proceeding on the
basis of the materials provided
● suspend the fixing of a date and time for the proceeding until it
determines that the appeal is ready to proceed
● take any other action that it deems appropriate
If a party provides a document that does not respect the time
limit, the Division must consider new factors to decide
whether to allow the party to use the document:
(a) the relevance and probative value of the document;
b) whether the party, with reasonable effort, could have met the time limits
set out in rules in respect of the document;
(c) any prejudice to the other party; and
(d) whether the request to be allowed to use the document was made in a
timely manner and the justification for any delay.
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● Time limit — medical documents – 60 days; and response docs – 30 days
• Time limits: Witness information – 30 days before the hearing.
o The witness information must also now include a brief statement of the
purpose and substance of the testimony,
• New: The conduct of a hearing is now set out in the IAD Rules (Rules 74 to
76). (for example: limit the number and the length of questioning of witnesses)
• New: The procedure for applications to reopen an appeal is now set out in the
IAD Rules (Rules 98 to 100)
• An application to change the date and time must also be made at least three
working days before a proceeding unless the application is made for medical
reasons (Rules 90 and 91).
• When a document is considered received by the Division – On the day
the document is date stamped by the division
• Time limits: Documents received – 7 days (in Canada) + 20 Days (outside
of Canada)
• Written Response and Reply – providing response: 7 days after the party
receives the application (Rule 86)
▪ Reply to written response – 5 days after the party receives the
responce
• Time limits: Return to Canada to appear at a hearing - no later than 60
days after the Division received the notice of appeal.
• Time limits: location change – 30 days before the hearing (Party must
appear)
• Time limits: date and time change – 2 days
• Time limits: hearing in private – 20 days before the hearing
• Time limits: written reasons of decision request – 10 days after the notice
of decision is received
Important to Remember:
● Documents used in an informal resolution process are no longer
confidential and can be used later in the appeal. However, any matter
discussed in an informal resolution process remains confidential (Rules
66 and 67).
● Written Statement – Unpaid Counsel
● Excluded witness
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● HEARING PROCESSING: Instead of holding a hearing, the Division
may require the parties to proceed in writing if doing so would not be
unfair to any party and a hearing is not otherwise required. THIS RULE
DOES NOT APPLY TO residency obligation appeal unless the parties
agree to resolve the appeal without a hearing. RO Hearing is required
unless as described here.
● Read about the factors to be consider before IRB allows the
application to change the date and time of the hearing (Exceptional
circumstances – Rule 89 and 90 on pages 27-29 of the IAD rules)
● Reinstating an appeal - The Division may allow the application if it is
established that there was a failure to observe a principle of natural
justice or if it is otherwise in the interests of justice to allow the
application.
● Allegations against former counsel: If appellants alleges in their
application that their former counsel provided inadequate
representation, the party must provide the application
o (a) to their former counsel before providing it to the Division; and
o (b) to the Division, accompanied by a written statement
indicating how and when it was provided to their former counsel.
In the case of an application that, the Division must not allow the
application unless it is established that there was a failure to observe a
principle of natural justice.
IAD hearing/Proceeding
Instead of holding a hearing, the Division may require the parties to proceed in writing if
this would not be unfair to any party and there is no need for the oral testimony of a
witness. Exception: This rule does not apply to an appeal against a decision made
outside Canada on the residency obligation.
Written reasons for decision
The Division must provide to the parties, together with the notice of decision, written
reasons for a decision on an appeal by a sponsor or for a decision that stays a removal
order.
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Removal order appeals before the Immigration Appeal Division (IAD)
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Report: An officer who believes that a permanent resident or foreign national in Canada
is inadmissible may prepare a report for the Minister. IRPA s. 44(1).
Issuance of a removal order by an officer – Foreign national: If the Minister believes
the report is well-founded, in the case of a foreign national where the report only
includes grounds set out in Regulations 228(1), an officer shall make the appropriate
removal order (deportation order, exclusion order or departure order). IRPA s. 44(2),
Regulations s. 228(1).
Issuance of a removal order by an officer – Permanent resident: If the Minister
believes the report is well-founded, in the case of a permanent resident who is
inadmissible solely for contravening the residency obligation under IRPA s. 28, an
officer may make a removal order (departure order). IRPA s. 44(2), Regulations s.
228(2).
Referral to the Immigration Division (ID) and issuance of a removal order by the
ID: If the Minister believes the report is well-founded, the Minister may refer the report to
the ID for an admissibility hearing: IRPA s. 44(2). Where the ID finds the person
concerned to be inadmissible, the ID will issue the appropriate removal order
(deportation order, exclusion order or departure order). IRPA s. 45, Regulations s. 229.
Right of appeal to the IAD: Subject to IRPA s. 64, there is a right to appeal a removal
order to the IAD as set out in IRPA ss. 63(2) & (3).
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Grounds for inadmissibility
Misrepresentation Non-compliance with Act Serious criminality
and criminality
Directly or indirectly Failing to comply with the
misrepresenting or IRPA. Acts or omissions Convictions in
withholding a material fact contravening the IRPA, Canada, or
that could induce an error including failing to convictions or
in the administration of the comply with the residency criminal acts
IRPA. obligation (IRPA s. 28). committed abroad
which are equivalent
IRPA s. 40 IRPA s. 41 to offences in
Canada.
IRPA s. 36
(possibly no right of
appeal)
Inadmissible family member: Foreign nationals may be inadmissible due to an
inadmissible family member. IRPA s. 42.
Inadmissibility grounds with no right of appeal to IAD: Security, Human Rights or
International Violations and Organized Criminality. IRPA ss. 34, 35 & 37.
Inadmissibility grounds rarely seen – Health grounds and Financial reasons. IRPA.
ss. 38 & 39.
Right of appeal – IRPA s. 63(3): A permanent resident or a protected person may
appeal to the IAD against a decision to make a removal order against them made by an
officer under IRPA s. 44(2) or made by the ID at an admissibility hearing.
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Right of appeal – IRPA s. 63(2): A foreign national who holds a valid permanent
resident visa may appeal to the IAD against a decision to make a removal order against
them made by an officer under IRPA s. 44(2) or made by the ID at an admissibility
hearing.
No right of appeal – IRPA ss. 64(1) & (2): No appeal may be made to the IAD by a
foreign national or permanent resident found inadmissible under IRPA ss. 34, 35 or 37.
With respect to inadmissibility for serious criminality under IRPA s. 36(1), no appeal
may be made to the IAD where the serious criminality is with respect to a crime that was
punished in Canada by a term of imprisonment of at least six months or that is
described in IRPA s. 36(1)(b) or (c) (serious criminality outside of Canada).
Facts: Factual findings are generally made on a balance of probabilities, but factual
findings under IRPA ss. 34 to 37 include facts for which there are reasonable grounds to
believe have occurred, are occurring, or may occur. IRPA s. 33.
Onus: In removal order appeals, the onus is on the Minister to prove the alleged ground
of inadmissibility if the legal validity of the removal order is contested (Yang, 2019 FC
1484). To obtain a favourable decision, it is also open to the appellant to prove that the
removal order is not valid if contesting its validity (error by the decision-maker or a
contravention of natural justice) or that the IAD should exercise its discretionary
humanitarian and compassionate (H&C) jurisdiction in favour of the appellant. IRPA ss.
67(1) & 68(1).
H&C considerations: In exercising its discretionary H&C jurisdiction, the IAD
taking into account the best interests of a child directly affected by the
decision, must consider whether there are sufficient H&C considerations to
warrant special relief in light of all the circumstances of the case. IRPA ss.
65, 67(1)(c) & 68(1).
Pre-condition to the ability to consider H&C considerations – IRPA S. 63(2)
appeal: In an appeal under IRPA s. 63(2) respecting an application based on
membership in the family class, the IAD may not consider H&C considerations unless it
has decided that the appellant is a member of the family class and that their sponsor is
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a sponsor within the meaning of the Regulations. IRPA s. 65. (This determination is
supposed to be made by the visa post. If not made, then the IAD must make the
determination before it can exercise its H&C jurisdiction.)
H&C considerations in removal order appeals include:
● Nature and seriousness of the ground of inadmissibility leading to the issuance of
the removal order
● Risk of recidivism and/or risk for future danger to the public
● Remorse shown by the appellant
● Possibility of rehabilitation or the circumstances surrounding the failure to meet
the conditions of admission as a permanent resident
● Length of time spent, and the degree to which the appellant is established in
Canada
● Family in Canada and the dislocation or hardship would there be to the
appellant’s family if the appellant is removed from Canada
● Support available for the appellant not only within the family but also within the
community
● Degree of hardship that would be caused to the appellant by the appellant’s
return to their county of nationality (where the likely country of nationality has
been established), or assess degree of hardship that would be caused to the
appellant by the appellant’s removal from Canada (where the likely country of
nationality has not been established)
● Best interests of any child directly affected by the decision (BIOC)
Decision: A removal order appeal may be allowed or dismissed, or the removal order
may be stayed with conditions. IRPA ss. 66, 67, 68 & 69, Regulations s. 251.
Allowing an appeal: If the IAD allows an appeal, it shall set aside the original decision
and substitute a determination that, in its opinion, should have been made, including the
making of a removal order, or refer the matter to the appropriate decision-maker (ID or
immigration officer) for reconsideration. IRPA s. 67(2).
Stays: A removal order may be stayed for a period of time with mandatory and non-
mandatory conditions. Prior to the IAD finally disposing a stayed removal order appeal
by allowing or dismissing it, the stay may at any time be reconsidered and where there
is a subsequent serious criminality conviction the stay is cancelled by operation of law
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and the appeal is terminated. Stays are primarily granted in appeals involving serious
criminality. IRPA ss. 36(1) & 68, Regulations s. 251.
General provisions
Hearings: Hearings at the IAD are generally conducted in public, absent specific
exceptions (e.g. refugee claimant, danger to the appellant or others, sexual offences
where there could be non-publication/disclosure orders from a criminal court
proceeding, young offender court issues): IRPA s. 166.
Designated representatives: Designated Representatives (DRs) are appointed if an
appellant is a minor (under age 18) or unable, in the opinion of the IAD, to appreciate
the nature of proceedings: IRPA, s. 167(2).
Impact of allowing an appeal: An officer, in examining a permanent resident or a
foreign national, is bound by the decision of the IAD to allow an appeal in respect of the
permanent resident or foreign national: IRPA s. 70(1).
Removal orders: There are three types of removal orders, namely, departure orders,
exclusion orders and deportation orders: Regulations ss. 223 to 229.
● Departure orders: Generally, a foreign national who is issued a departure order
is exempt from the requirement to obtain an authorization in order to return to
Canada under IRPA s. 52 (ARC), however, they must within 30 days after the
order becomes enforceable leave Canada in accordance with the Regulations,
failing which the departure order becomes a deportation order.
● Exclusion orders: Generally, an exclusion order obliges the foreign national to
obtain an ARC during the one-year period after the exclusion order was
enforced, however, the period is five years where the exclusion order is made
based on a finding of inadmissibility for misrepresentation.
● Deportation orders: Generally, a deportation order obliges the foreign national
to obtain an ARC in order to return to Canada at any time after the removal order
was enforced.
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Residency obligation (RO) appeals before the Immigration Appeal Division (IAD)
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Grounds for inadmissibility - Non-compliance with Act: Contravening IRPA by
failing to comply with the residency obligation: IRPA ss. 28 & 41, Regulations ss. 61 &
62
Determination: The determination is made outside of Canada, usually in relation to an
application by a permanent resident for a Permanent Resident Travel Document
(PRTD) used to return to Canada where a permanent resident does not possess a valid
permanent resident card.
Right of appeal – IRPA s. 63(4): A permanent resident may appeal to the IAD against
a decision made outside of Canada on the residency obligation under section 28.
Residency Obligation - Period: A permanent resident must comply with a residency
obligation with respect to every five-year period: IRPA s. 28, Regulations ss. 61 & 62.
Residency obligation – Compliance: A permanent resident complies with the
residency obligation with respect to a five-year period if, on each of a total of at least
730 days in that five-year period, they are:
i. physically present in Canada,
ii. outside Canada accompanying a Canadian citizen who is their spouse or
common-law partner or, in the case of a child, their parent,
iii. outside Canada employed on a full-time basis by a Canadian business or in
the federal public administration or the public service of a province, or
iv. outside Canada accompanying a permanent resident who is their spouse or
common-law partner or, in the case of a child, their parent and who is employed
on a full-time basis by a Canadian business or in the federal public administration
or the public service of a province: IRPA s. 28(2)(a). Regulations ss. 61 & 62.
Residency obligation – Calculation of five-year period: It is sufficient for a
permanent resident to demonstrate at examination
i. if they have been a permanent resident for less than five years, that they will
be able to meet the residency obligation in respect of the five-year period
immediately after they became a permanent resident;
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ii. if they have been a permanent resident for five years or more, that they have
met the residency obligation in respect of the five-year period immediately
before the examination: IRPA s. 28(2)(b).
H&C determination by officer: As part of the residency obligation determination, an
officer is required to consider whether H&C considerations, justify the retention of
permanent resident status overcomes any breach of the residency obligation prior to the
determination: IRPA s. 28(2)(c).
Hearing: The IAD must hold a hearing in a residency obligation appeal.
Presence of an appellant at the hearing: In a residency obligation appeal, the IAD
may make an order that the appellant physically appear at the hearing, in which case an
officer shall issue a travel document for that purpose: IRPA s. 176(2). Usually, this is as
a result of a pre-hearing application made by the appellant. Most appellants attend their
hearing by telephone, unless their application to return succeeds (not often allowed by
the IAD) or they are otherwise able to enter Canada.
Facts: Factual findings are generally made on a balance of probabilities.
Onus: In order to obtain a favourable decision, the onus is on the appellant to prove
that the residency obligation determination is not valid (error by the decision-maker or a
contravention of natural justice) or that the IAD should exercise its discretionary
humanitarian and compassionate (H&C) jurisdiction in favour of the appellant: IRPA s.
67(1).
H&C considerations: In exercising its discretionary H&C jurisdiction, the IAD taking
into account the best interests of a child directly affected by the decision, must consider
whether there are sufficient H&C considerations to warrant special relief in light of all the
circumstances of the case: IRPA s. 67(1)(c).
H&C considerations in residency obligation appeals include:
● Extent of the non-compliance with the residency obligation
● Reasons for the departure from Canada
● Remorse shown by the appellant
● Reasons for continued or lengthy stay abroad
● Whether attempts to return to Canada were made at the first opportunity
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● The degree of establishment in Canada, both initial and continuing including
evidence of acquisition or retention of assets in Canada
● Family ties to Canada and whether the appellant can be sponsored by their
family members in Canada
● Hardship and dislocation that would be caused to the appellant and his family in
Canada if the appellant were to lose their permanent residence status including
hardship to the appellant in their country of nationality or residence
● Whether there are other unique or special circumstances that merit special relief
● Best interests of any child directly affected by the decision (BIOC)
Decision: The appeal may be allowed or dismissed: IRPA ss. 66, 67 & 69.
Allowing an appeal: If the IAD allows an appeal, it shall set aside the original decision
and substitute a determination that, in its opinion, should have been made, or refer the
matter to the appropriate decision-maker (visa post) for reconsideration. Allowing an
appeal results in the appellant retaining their status as a permanent resident: IRPA s.
67(2).
Dismissing an appeal where appellant is in Canada: If the IAD dismisses a
residency obligation appeal and the appellant is in Canada, the IAD shall make a
removal order (departure order): IRPA s. 69(3)
General provisions
● Hearings at the IAD are generally conducted in public, absent specific exceptions
(e.g. refugee claimant, danger to the appellant or others, sexual offences where
there could be non-publication/disclosure orders from a criminal court
proceeding, young offenders issues): IRPA s. 166.
● Designated Representatives are appointed if an appellant is a minor (under age
18) or unable, in the opinion of the IAD, to appreciate the nature of proceedings:
IRPA, s. 167(2).
● An officer, in examining a permanent resident or a foreign national, is bound by
the decision of the IAD to allow an appeal in respect of the permanent resident or
foreign national: IRPA, s. 70(1).
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