Filipiniana News – March 2013
RHYME & REASON
Since most immigration applications
are submitted without legal representation, it is often only when these
applications are refused that the applicants will decide to seek the legal
services of an immigration lawyer. The
first question asked of the lawyer is, can we appeal the negative
decision?
It must be noted that there are
limited types of immigration decisions that can be appealed with the
Immigration Appeal Division of the Immigration and Refugee Board (IRB). Most immigration decisions however, can be
elevated to the Federal Court via an application for leave and judicial
review.
What is the difference between these
two legal remedies? Isn’t the Federal
Court application also a form of appeal?
In the sense that it gives a further chance to be heard by another
decision maker, yes, it may be considered a form of “appeal”. Under Canadian immigration law however, an
appeal is distinct from a Federal Court judicial review application. Each of these legal remedies has specific
purposes, requirements and limitations.
An immigration appeal is filed with
the Immigration Appeal Division of the IRB (an administrative tribunal) while
an application for leave and judicial review is filed with the judicial
courts. Since immigration laws are under
Federal jurisdiction, this means the Federal Court of Canada.
An appeal is a trial de novo, thus allowing the appellant to
present as evidence not only documents already before an officer but also
additional factual evidence not previously submitted. The decision maker in an appeal (a tribunal
board member) can substitute its decision over that of the originating
decision-maker.
A Federal Court judge on the other
hand, can only decide on judicial review whether or not the decision of the
administrative tribunal was reasonable or consistent with legal and natural
justice principles. If judicial review
is allowed (i.e. the court finds the administrative decision unreasonable), the
judge will send back the matter for redetermination by another administrative
decision-maker. A Federal Court judge
cannot itself render the administrative decision such as that of granting an
immigration application.
The closest that a judge can get to
intervening with an immigration process is via the filing of a motion to stay a
removal order which, if granted, prevents the enforcement of a removal order
against the applicant pending the final decision on the underlying application for
leave and judicial review. In rare
instances, some Federal Court judges have also granted stays of removal orders
until a final decision is rendered on an existing immigration application. In either case, the final decision on the
immigration application still rests with the administrative officer or
tribunal. .
The stay motion filed with the Federal
Court involves specific procedures and strict deadlines. Aside from the notice of application for
leave and judicial review, there is the motion record to be submitted which
must consist of a properly indexed, paged and bound compilation of facts
(presented through affidavits), supporting documents, legal arguments and a
book of authorities. One can only imagine
the amount of physical and mental energy (i.e. legal research and analysis)
entailed by the preparation of these submissions within very limited time
constraints. A copy of the record needs
to be served on the Department of Justice (DOJ) before copies are submitted to
the Federal Court registry with proof of service to DOJ. The matter must then be orally argued before
a Federal Court judge on motions day (or any other day with leave of
court). Only after all these have been
done will the judge decide whether or not to stay the removal order. It is not unusual for a judicial stay to be
granted at the very last minute, e.g. when the applicant is already at the
airport or has even boarded the airplane!
The application for leave and judicial
review on the other hand, is where the serious legal and/or factual issues are
actually decided upon, i.e. the main application upon which the stay motion is
based. Apart from the expected logical and succinct presentation of facts and
legal arguments, the record must comply with strict technical rules involving
the number of pages, margins, tabbing, binding, etc. The application record is submitted within a
set period and if granted leave, the matter is scheduled for hearing before
another Federal Court judge. While it is
possible to find legal arguments in many cases, the case would still be very
weak if the foundation itself is weak.
It is an important principle to note that in a judicial review
application, additional evidence cannot be submitted which were not also
presented to the administrative officer for consideration in the decision under
review. It is not an “appeal” after
all, but a “review” of the administrative decision by the judicial branch. Therefore, in these instances, winning at
the Federal Court level will be a tough battle, unless there are clearly
serious procedural and substantive administrative errors committed by the
administrative decision-maker. If the
judicial review is allowed, the matter will be sent back to another
administrative decision-maker for redetermination.
While non-lawyers are allowed to represent
clients at the Immigration and Refugee Board, only lawyers can appear before
the Federal Court. However, at both
levels, there are specific rules to be followed and evidentiary burdens to be
met. If the lawyer is called upon to
assist only at the Federal Court level to seek leave to file judicial review
and/or file a motion to stay the removal order, it will be a very challenging
task to obtain a positive ruling if the legal and factual foundation are weak
or had been weakened by errors committed earlier on.
Hopefully, the above has somehow aided
towards a better understanding not only of immigration appeals vis-à-vis
Federal Court judicial review applications and motions, but also on the role of
immigration lawyers in these processes.
Please note that the above are for legal
information only and not intended to provide specific legal advice. It is strongly advised that you consult with
a legal professional to discuss your particular circumstances.
The author is a Canadian immigration
lawyer and may be reached at deanna@santoslaw.ca
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