Immigration. Deportations. Appeals.

An application for leave and for judicial review is a discretionary review by the Federal Court of whether an immigration official’s decision constitutes a valid exercise of his statutory authority.

When an applicant has received a negative decision from the immigration official, whether in Canada or outside, he or she may ask the Federal Court to judicially review that decision. Judicial review is a two-stage process:

1. in the first stage, called “leave” stage, the court reviews the applicant’s written arguments and documents relating to the applicant’s case. The applicant must demonstrate to the court that an error was made in the immigration official’s decision or the decision was not fair or reasonable. If leave is granted, it means the court has preliminary determined that the applicant’s application is meritorious and agreed to examine reasons for the immigration official’s decision in depth; and
2. at the second stage, called “judicial review”, the applicant’s legal counsel will attend an oral hearing, before the Federal Court’s judge, to argue why he believes the immigration official’s decision is wrong. Should the court be persuaded, the decision will be set aside and the matter returned back for re-consideration.

Judicial review is a costly and legally complex process. Hiring experienced immigration counsel is a wise investment into your future, especially at such a critical stage of your immigration process.

An application for a stay of execution of a removal order requests the Federal Court to suspend the execution of the order, while some challenge to the validity of the order is decided. However, there are many judgments of the Federal Court, where judges have asserted the jurisdiction to stay execution of the removal order pending some other process (eg judicial review of the refusal of a Humanitarian & Compassionate or Pre-removal Risk Assessment application, or an inland enforcement officer’s decision not to administratively defer removal), which does not put into question the validity of the removal order. The rationale for a stay being granted in those circumstances, is that the Federal Court is protecting the integrity of the process. The test for the granting the stay of removal by no means a light one.

Stay application are processed and heard on an expeditious basis, at times on Saturdays and Sundays, over the phone or in-person. They are very complex and require in-depth knowledge of the process and jurisprudence.

Please refer to section “Selected Experience” to learn more about our immigration litigation experience.

Citizens have unqualified right to enter, remain in and leave Canada. It is important to note that the status of naturalized citizens less secure than that of persons who have gained the status by other means. Citizenship Act identifies how the status can be acquired and lost.

We provide legal advice and representation to those seeking to gain citizenship through naturalization, retain or defend their citizenship.

Please refer to section “Selected Experience” to learn more about our experience with citizenship appeals.

Permanent residents, sponsors and protected persons have the right to appeal a negative decision, or  removal order, to the Immigration Appeal Division of the Immigration and Refugee Board. In some instances this option is unavailable, for example, where the individual is inadmissible on grounds of security, violating human or international rights, organized criminality, or serious criminality.

A removal order may be issued either by an immigration officer acting as the Minister’s delegate or by the Immigration Division of the Immigration Refugee Board.  If appeal is available, the removal order comes into force either at the expiry of the appeal period or when the appeal is determined. If no appeal is available, the removal order comes into force on the day it is made.

Please refer to section “Selected Experience” to learn more about our experience with immigration litigation.

In immigration matters, a foreign national may be detained, without a warrant, for an examination, an inquiry or removal. The Immigration Division views detention as preventive, rather than punitive in nature. The Immigration and Refugee Protection Act provides for a system of regular reviews of the initial decision to detain a person. The first detention review must be held within 48 hours of  the detention, the second within 7 days and the third within 30 days. Typically, the following principles, among others, guide adjudicators when deciding whether the foreign national should be released:

1. whether the foreign national has satisfactory established his or her identity;
2. whether the removal order will be executed in the foreseeable future;
3. whether the detained is a danger to national security or the safety of any person in Canada;
4. if released, whether the detained unlikely to appear for an examination, inquiry or removal; and

Where an adjudicator who conducts a detention review is satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal, the adjudicator will order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate, including the payment of security deposit, posting of a performance bond or wearing an electronic GPS bracelet, etc.

Please refer to section “Selected Experience” to learn more about our experience with detention reviews.

A foreign national or permanent resident of Canada who has been subjected to the prolonged immigration detention has the right to ask a provincial (and not Federal) court to review the legality of his continued detention by bringing a habeas corpus application. Habeas corpus is non-discretionary. It issues as of right once a detainee proves a deprivation of liberty and raises a legitimate ground upon which to question the legality of that deprivation.

If the detainee shows that there is cause to doubt the legality of the detention the matter will be heard afresh with the Minister of Public Safety bearing the onus. Habeas corpus allows the provincial court to take a step back and look at the evidence without the burden of previous Immigration Division’s decisions, which refused to release the detainee. The detainee will not be required to show that there has been a change from prior dispositions. The onus on the Minister will be to show that the detention, despite its length and uncertain duration, is nonetheless legal. Simply showing that one of the listed grounds in s. 58 of the IRPA is present will not satisfy the onus.

A hearing on a habeas corpus application in a superior court can be obtained more rapidly than a hearing on a judicial review application in the Federal Court. In the Federal Court, before a hearing can even be scheduled, leave must be obtained.

A determination of inadmissibility may prevent the entry of a foreign national outside Canada or lead to the removal of a person from Canada. For those at a port of entry or within Canada, the process of determining inadmissibility will normally begin with an immigration officer, who is of the opinion that a foreign national in Canada is inadmissible due to criminality, organized criminality, security, human or international rights violations, health, financial reasons, misrepresentation or non-compliance, preparing a report of the relevant facts and forwarding it to the Minster of Citizenship and Immigration.

In most circumstances, the Minister’s delegate will then refer the report to the Immigration Division of the Immigration & Refugee Board.  A member of that Division will determine, at an admissibility hearing, whether the person is inadmissible and, if so, will issue a removal order. This decision may be judicial reviewed and, in some instances, appealed.

Inadmissibility hearings are typically costly and complex processes. Retaining experienced immigration counsel is a wise investment into your future, especially at such a critical stage of your immigration process.

Refugee Claims

Canada offers refugee protection to people in Canada who fear persecution or whose removal from Canada would subject them to a danger of torture, a risk to their life or a risk of cruel and unusual treatment or punishment. A claim for protection from within Canada can be made at a port of entry or at a Canadian Immigration Centre. Persons deemed eligible to make a claim for protection in Canada can make their claim before the Refugee Protection Division of the Immigration and Refugee Board. However, a refugee claimant must be eligible to file a refugee claim as a prerequisite to the referral of a claim to the Immigration and Refugee Board.

Refugee Appeals

Launched on December 15, 2012, the Refugee Appeal Division considers appeals against decisions of the Refugee Protection Division to allow or reject claims for refugee protection. In most cases, there will be no hearing as the Refugee Appeal Division will base its decision on the documents provided by the parties involved and the Refugee Protection Division’s record.

It is critical for a person who intends to seek, or appeal, refugee status in Canada to obtain advice from experienced immigration counsel before he or she files for refugee protection.

In certain instances, a person in Canada may apply to the Minister of Citizenship & Immigration for protection if he is subject to a removal order. The effect of a successful application is either that the person is recognized as a protected person or, where, for example, the person has been found to be inadmissible on serious grounds, that the removal order is stayed.

If the person is someone who has unsuccessfully sought refuge protection, then he may introduce only new evidence in the application. What constitutes “new” evidence is debatable and requires a careful assessment. The Minister may conduct a hearing, depending on the presence of factors. The Immigration legislation renders various individuals ineligible for a Pre-removal Risk Assessment Application. The negative decision on the PRRA application may be judicially reviewed in the Federal Court (as discussed above).

Retaining experienced immigration counsel is a wise investment into your future, especially at such a critical stage of your life and immigration process.

In certain instances, a person can apply to stay in Canada on humanitarian or compassionate grounds (H&C). Applications to become a permanent resident on H&C grounds are approved only in exceptional circumstances.

Importantly, on December 10, 2015, in Kanthasamy v. Canada (CIC), 2015 SCC 61, the Supreme Court of Canada rendered a historic decision, where it reframed the legal test for granting permanent resident status from within Canada on Humanitarian & Compassionate grounds. The top court stated the new test as: “whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought.” The new “simply unacceptable” test replaced the “hardship” test, which previously required applicants to demonstrate “unusual and undeserved or disproportionate” hardship.

Typically, pending H&C applications will not prevent or delay the applicant’s removal from Canada. Should the applicant be compelled to leave Canada his or her H&C application would continue to be processed. There is no right to appeal refused H&C application. However, in appropriate cases, the refused applicant can ask the Federal Court to judicially review the negative decision.

We would be pleased to meet with you to discuss your unique circumstances, provide you with a balanced, objective and strategic assessment of your case and estimate your chances to succeed on H&C application.

An LMIA is an assessment by the federal government of the impact the hiring of a foreign worker will have on the Canadian labour market. The government operates the LMIA process through the Temporary Foreign Worker Program (“TFWP”). This program assists employers in filling their genuine skill and labour shortages, on a temporary basis, when qualified Canadians and permanent residents are not available.

For many foreign workers, an employer must apply for and receive a positive LMIA before the worker is permitted to work in Canada. TFWP is responsible for reviewing LMIA applications from employers and assessing the likely impact the proposed workers would have on the Canadian labour market, as well ensuring that Canadians have the first opportunity at the available jobs. The LMIA process requires that employers, among others, engage in advertising and recruitment aimed at filling the position in question with Canadian workers prior to applying for approval to hire a foreign worker. The employer’s efforts and results will form part of TFWP evaluation. However, not all foreign workers require a LMIA to obtain a work permit.

We would be pleased to meet with you to discuss your unique circumstances, provide you with a balanced, objective and strategic assessment of your case and estimate your chances to succeed on an LMIA application.