GENERAL PROCEDURES FOR ALL APPEALS
TO THE IMMIGRATION APPEAL DIVISION (IAD)
(under the Immigration and Refugee Protection Act,
effective June 28, 2002)
The questions and answers below are to help you prepare for your appeal hearing. The following general information should not be taken as legal advice.
Where will my appeal hearing take place?
Your appeal hearing will take place at the Immigration and Refugee Board (IRB). The IRB is an independent tribunal. It is not part of the Immigration department, also known as Citizenship and Immigration Canada (CIC), and it is not part of the Canada Border Services Agency (CBSA).
Who will decide my appeal?
A Member of the Immigration Appeal Division (IAD) of the IRB will decide your appeal.
Who will be at my appeal hearing?
The IAD Member, who will decide your appeal, will be seated at the front of the hearing room. You (the appellant) will be there with or without your counsel, depending on whether you chose to have someone represent you. There will also be a Minister's counsel from the Canada Border Services Agency (CBSA) who may provide evidence, ask questions to you and other witnesses, and make arguments against your appeal. Any witnesses that you or the Minister's counsel bring to testify (give oral evidence) will also be at the hearing. An interpreter will be there for you or any of your witnesses, if you have asked for one. Members of the public are also allowed to attend.
Do I need someone to represent me in my appeal?
You do not have to have someone represent you, but you may if you think that this will help your appeal. There are often legal questions that need to be argued in the appeal and you need to make sure that your case is well supported by providing enough evidence. You should also know that the Minister's counsel will be at your hearing to question you and other witnesses, and make arguments against your appeal. If you have someone to represent you, such as a lawyer or a consultant, friend, relative, or trusted member of your community, that person must be available and prepared on the date of the appeal hearing.
Under a regulation in effect on April 13, 2004, if you choose to retain counsel who charges a fee, the counsel must be a member in good standing of either a provincial law society, the Chambre des notaires du Québec, or the Immigration Consultants of Canada Regulatory Council (ICCRC).
How will I know when my appeal hearing will take place?
You will receive a notice from the IAD to appear for the scheduling conference (Assignment Court). You and your counsel, if you have one, must be there on the date and at the time stated in this notice to appear. At that time an IAD Member will ask questions, to make sure that your case is ready to be scheduled. If the Member is satisfied that your appeal is ready to be scheduled, you will be given the date and time for your appeal hearing.
What will happen if my counsel and I cannot appear on the appeal hearing date?
When an appeal hearing date is set, you must be ready for the hearing on that date. If you can not appear on that day, you may make an application in writing to change the date or time of your hearing - but an IAD Member will allow your application and make a change only if there are very good reasons. This is also called a postponement or an adjournment.
You must provide a copy of your application to the Minister's counsel. You must also provide your application to the IAD registry office, together with a statement of how and when you provided the copy to the Minister's counsel. The addresses for the IAD and CBSA/ CIC offices are in the letters or other notices that the IAD sends to you after you have made your appeal.
In your application (which may be written like a letter), you must:
- explain why you want to change the date or time of your hearing;
- say whether the Minister's counsel agrees to your request; and
- give at least six new dates on which you are available for your hearing. These six dates must be within a time period specified by the IAD — therefore, you should first contact the IAD registry office to find out which weeks or months the IAD has available for hearings.
The date or time of your hearing will be changed only for a very good reason. If you do not receive a decision from the IAD on your application to change the date or time of the hearing, or if the IAD refuses your application, you must appear on the scheduled hearing date and be prepared for your appeal hearing. If you do not appear, your appeal may be dismissed.
If the Minister's counsel or the IAD registry office receives your application two working days or less before the scheduled hearing date, you must appear at your scheduled hearing. At that time, you may ask for a change in the date or time of your hearing but you should be prepared to go ahead that day if your application is denied.
2. PREPARING FOR YOUR APPEAL
What must I show to win my appeal?
To win your appeal, you must show that the decision made by Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA) or by the Immigration Division (ID) is wrong in law or wrong in fact. Also, in some cases, the IAD Member may be able to consider humanitarian and compassionate reasons to allow your appeal even if the CBSA/ CIC or ID decision was correct in law and fact. It is your responsibility to show that your appeal should be allowed and not dismissed.
Do I have to provide any documents for my hearing?
Documentary evidence can be very important in helping you win your appeal. To show that the CBSA/ CIC or ID decision was wrong, or in some cases, that there are sufficient humanitarian and compassionate reasons, you may need to provide documents to be used at your hearing.
If you would like to provide documents, you must make two copies of each document (including any photographs or videocassettes). You must provide one copy to the Minister's counsel. You must also provide one copy to the IAD registry office, together with a statement of how and when you provided the documents to the Minister's counsel. The addresses of the IAD and CBSA/ CIC offices are in the letters or other notices that the IAD sends to you after you have filed your appeal. The documents must be received no later than 20 days before the hearing.
Before your hearing, the Minister's counsel will have provided you and the IAD with the appeal record. These are the documents in the CBSA/ CIC or ID file that are related to your appeal. The Minister's counsel may also provide other documents for the hearing, no later than 20 days before the hearing. You have a chance to provide documents in response to the documents from the Minister's counsel - these documents must be received no later than 10 days before the hearing. This exchange of documents is called "disclosure." If you or the Minister's counsel do not disclose documents properly, then those documents cannot be used at the hearing unless the IAD Member allows this to be done.
If your documents are not in English or French, they must be translated. The translations and a translator's declaration must be provided together with the copies of the documents to the IAD and to the Minister's counsel. The translator's declaration must include:
- the translator's name,
- the language translated and
- a statement signed by the translator that the translation is accurate.
Even if you have provided copies of your documents before the hearing, you should bring the original documents to the hearing if you have them.
Can I bring witnesses?
You may bring witnesses to your hearing if you think this will help your appeal. Witnesses must be prepared to answer questions at your hearing (this is called testifying or giving testimony).
No later than 20 days before the hearing, you must provide certain information regarding your witness to the IAD and the Minister's counsel. In writing, you must:
- state the witness's contact information (address, and telephone and fax numbers),
- how long the testimony will take,
- your relationship to the witness, and
- whether you want the witness to testify in person, by videoconference or by telephone.
If the witness is an expert, you must also include a report signed by the expert giving their qualifications and summarizing their evidence.
If you do not properly provided the witness information, the witness will not be able to testify unless the IAD Member allows the witness to testify.
It is your responsibility to make sure your witness or witnesses appear at your appeal hearing. To make sure that your witness will appear, you may ask the IAD registry office for a summons, which is an IAD order to appear at the hearing that the witness must obey. There are special rules for providing a summons to a witness, along with witness fees and travel expenses - for further information, contact the IAD registry office.
What if I need an interpreter?
If you or any of your witnesses need an interpreter, you must notify the IAD registry office either in writing no later than 20 days before your appeal hearing, or in person at the scheduling conference (Assignment Court). You must indicate the language and dialect (if any) that you or your witness needs. The IAD will provide an interpreter for your hearing at no cost to you.
What if my witness is not in Canada?
If your witness is in another country, you may ask the IAD Member to allow that witness to testify at your appeal hearing by telephone. You must tell the IAD before the appeal hearing, and you must make sure that your witness can be reached by telephone at the time of your hearing. Since you must pay for the call, you must bring a calling card from your telephone company that you can use to charge the call to a telephone number, or bring long distance phone cards. Note that the IAD will not allow you to use any phone card with less than two hours' international calling time available. Also, some companies' calling cards may not work very well, and if there are problems, the IAD Member might decide to go ahead without hearing from your witness.