Last updated on September 15th, 2021
It is not uncommon for the Canada Border Services Agency (“CBSA“) to consent to an Immigration Appeal Division (the “IAD”) appeal, and for the applicant and CBSA to make joint submissions.
On occassion, the IAD will not accept the joint submissions.
There are also occassions where the IAD may signal, either expressly or impliedly that a certain matter is not at issue, while it in fact may be or become an issue.
The jurisprudence on this is as follows.
In Velauthar v Canada (Minister of Employment and Immigration),  FCJ No 425 (CA), a panel advised counsel before submissions that the only issue was whether the persecution the claimant feared was based on a Convention ground. This implied that credibility was not in issue, so the parties did not address credibility in their submissions. The Federal Court of Appeal found it to be a “gross denial of natural justice” for the panel to then make an adverse determination on grounds of credibility.” The Federal Court of Canada has applied Velauthar in cases where a tribunal directly or by implication gave the misleading impression that a matter or issue was resolved.
At the same time, the Federal Court of Canada in Fong v Canada (Public Safety and Emergency Preparedness), 2010 FC 1134, ruled that the IAD is entitled to reject a joint submission so long as it provides reasons for so doing and if hte process was procedurally fair. However, the IAD must give serious consideration to the joint submission. Several Federal Court decisions have compared joint submissions at the IAD with joint submissions in criminal sentencing.
In Grewal v.Read more ›
Rule 43(1) of the Immigration Division Rules, SOR/2002-229 states:
Application to change the date or time of a hearing
43 (1) A party may make an application to the Division to change the date or time of a hearing.
(2) In deciding the application, the Division must consider any relevant factors, including
(a) in the case of a date and time that was fixed after the Division consulted or tried to consult the party, the existence of exceptional circumstances for allowing the application;
(b) when the party made the application;
(c) the time the party has had to prepare for the hearing;
(d) the efforts made by the party to be ready to start or continue the hearing;
(e) the nature and complexity of the matter to be heard;
(f) whether the party has counsel;
(g) any previous delays and the reasons for them;
(h) whether the time and date fixed for the hearing was peremptory; and
(i) whether allowing the application would unreasonably delay the proceedings or likely cause an injustice.
Duty to appear at the hearing
(3) Unless a party receives a decision from the Division allowing the application, the party must appear for the hearing at the date and time fixed and be ready to start or continue the hearing.
In Cabrera v Canada (Citizenship and Immigration), 2010 FC 709 the Federal Court found that the Immigration Division needs to consider all relevant factors. Justice Russell wrote:
Be that as it may, it seems to me that the ID was obliged to consider the Applicant’s adjournment request in accordance with section 43 of the Immigration Division Rules.Read more ›
Last updated on February 11th, 2021
A permanent resident can lose their permanent resident status and be banned from Canada if they commit misrepresentation. However, they have a right of appeal to the Immigration Appeal Division (the “IAD“). At the IAD, the permanent resident can argue that the determination that they committed misrepresentation was based on a factual error or mistake in law. They can also argue that there are sufficient humanitarian & compassionate (“H&C“) to warrant relief.
In Wang v. Canada, the Federal Court of Canada set out the following factors (generally known as the “Wang” or the “modified Chieu” factors) to be the appropriate considerations in determining whether there are sufficient H&C considerations to justify not cancelling someone’s permanent resident status and banning them from Canada for five years:
- the seriousness of the misrepresentation leading to the removal order and the circumstances surrounding it;
- the remorsefulness of the permanent residence;
- the length of time spent in Canada and the degree to which the permanent resident is established in Canada;
- the permanent resident’s family in Canada and the impact on the family that removal would cause;
- the best interests of a child directly affected by the decision;
- the support available to the permanent resident in the family and the community; and
- the degree of hardship that would be caused by the permanent resident by removal from Canada, including the conditions in the likely country of removal.
Chieu was a Supreme Court of Canada decision in which the Supreme Court had to answer the question of whether the Appeal Division of the Immigration and Refugee Board,Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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