If you wish to appeal a decision on your immigration file or to apply for a judicial review, it is possible to do so with the Immigration and Refugee Board of Canada (IRB), with legal tribunals such as the Federal Court of Canada or with any other administrative tribunal, depending on your situation and your request.

The Immigration and Refugee Board of Canada (IRB) is the largest independent administrative tribunal in Canada. Its mission is to render, in an efficient, fair and law-compliant manner, informed decisions on matters relating to immigration and refugee status. One of the responsibilities of the IRB is to determine who needs protection among the thousands of refugee claimants who come to Canada each year.

Judicial review

Under Canadian immigration laws, you can ask the Federal Court of Canada to review an immigration decision.

• Ensure that ministries and other government organisms acted in accordance with the principles of administrative law;
• An important mechanism to prevent abuses of executive power;
• Review begins with the submission of an authorization application from the Minister for judicial review by the Court;
• The applicant must have a direct and substantial interest in the decision rendered.

Where to search to determine who has the right to initiate judicial review proceedings?

• Administrative courts;
• Enabling statute for the tribunal;
• Common law.

Decision

The decision of the Federal Court judge on the authorization application is final and is not subject to appeal. A judge’s decision following an application for full judicial review can be appealed at the Federal Court of Appeal, but only if the judge certifies that the case raises a serious question of general importance.

Distinction between an appeal and an application for judicial review

In an appeal or an application for judicial review, the concerned party or the applicant, as the case may be, seeks to challenge a decision contrary to its interests.

Appeal

With respect to appeals, the Immigration and Refugee Protection Act (IRPA) gives the person the right to appeal to a specific level of appeal body, such as the Appeal Division of the immigration from the Immigration and Refugee Board (IAD).

When there is an appeal, there is an automatic suspension of that tribunal’s decision.

A decision that has been appealed can be handled as follows:

• reject the appeal;
• postpone the effect of the decision being appealed; or
• authorize the call and either
• replace the decision taken with the decision of the appeal tribunal; or
• Return the issue to the decision maker for reconsideration.

Administrative Tribunals Act

In Canada, administrative tribunals make decisions on behalf of the federal government or a provincial government when it is impossible or inappropriate for that government to decide for itself. These courts are established under “enabling legislation” promulgated by the federal or provincial legislature. They are commonly referred to as a “commission” or “council” and make decisions on a wide variety of issues, including disputes between individuals or between individuals and the government. These courts can also perform regulatory and licensing functions. Their decisions are subject of a review by a court of law. They are often referred to as quasi-judicial bodies because they conduct investigations and have the power to influence the rights of individuals.

• Administrative law is the law that governs the exercise of power by the executive branch of government;
• It is a “hybrid entity” and could also be called an agency or commission;
• It is a quasi-judicial entity that hears testimony and renders decisions like courts, but that are not necessarily presided by judges.

The law allows a court to remove a person from a hearing if they do not comply with a court order or direction.

Q: What types of information are administrative bodies allowed to consider when making a decision?

A: With some exceptions, only information provided in the form of evidence presented by both concerned parties during the hearing.

Legislative Powers Act

A law that gives the court the power to issue orders or instructions so as to prevent abuse of court procedures.

Administrative Justice Act

It establishes the general rules of procedure applicable to individual decisions taken with regard to a citizen. These procedural rules differ depending on whether the decisions are taken in the exercise of an administrative function or a judicial function. They are, where appropriate, supplemented by specific rules established by law or under the authority thereof.

Procedural fairness

Procedural fairness requires that applicants:

• obtain a fair and impartial assessment of their application;
• are kept informed of the concerns of decision-makers;
• are given a real opportunity to address concerns about their request.

Main elements of procedural fairness

• Processing without undue delay;
• The right to a fair and impartial decision-making process;
• The applicant’s right to be heard;
• The person who hears must decide;
• Legitimate expectations;
• Decisions must be based on the Immigration and Refugee Protection Act and its regulations;
• Right to reasons.

Factors required by the duty of fairness

• The nature of the decision made and the process followed to make it;
• The role of the decision within the framework of the legal regime;
• The importance of the decision to the affected individual (s);
• Procedural fairness is not absolute but contextual.

Source of procedural fairness

• In the Canadian Charter of Rights and Freedoms;
• Quebec Charter of Human Rights and Freedoms;
• The Canadian Bill of Rights.

Mediation

Benefits

• Parties are spared the cost of a hearing;
• The court is spared the cost of a hearing;
• The parties settle the dispute on their own terms.

Interpreter

The hearing will be conducted in French or English. You chose your preferred language when sending your notice of appeal.

If you or any of your witnesses require the services of an interpreter, you must notify the IAD in advance. You can do this in one of the following ways:

• in writing, no later than 20 days before the hearing on your appeal;
• in person, at the scheduling conference.

When you receive your notice of appeal, you will also receive a form called Confirmation of Hearing Needs, which you must complete; It contains questions about your interpretation needs and those of your witnesses.

You must specify the language or dialect (if applicable) in which interpretation services are required for you or for your witnesses. The IAD will provide you with an interpreter in the courtroom, free of charge.