Can a Refused Case be Re-opened at the Immigration Appeal Division?
In this article, I would like to explore the possibility of the Immigration Appeal Division (IAD) to re-open cases or re-hear them after they have been refused.
The ability to have your case re-opened at the IAD is in the legislation, specifically in the Immigration and Refugee Protection Act (IRPA), section 71:
The Immigration Appeal Division, on application by a foreign national who
has not left Canada under a removal order, may reopen an appeal if it is
satisfied that it failed to observe a principle of natural justice.
Section 51 of the Immigration Appeal Division Rules states in part:
- (1) A person may apply to the Division to reinstate an appeal that was
made by that person and withdrawn.
(3) The Division must allow the application if it is established that there
was a failure to observe a principle of natural justice or if it is otherwise in
the interests of justice to allow the application.
The IAD has jurisdiction, under the Act, to re-open any case where natural justice was violated. This includes withdrawn cases (appeals that were withdrawn before they were heard by the Tribunal). So, although the Act does not give a huge window for re-opening refused cases, it gives an opportunity to use IAD’s jurisdiction beyond the breach of “breaching principals of natural justice”.
The IAD, in allowing re-opening a case, does not have jurisdiction to hear new evidence, similar to the Federal Court. In practical terms, it means that the appellant has to use documents and transcripts from the initial hearing and the appellant prohibits by the rules of this division to introduce new material.
In order to be successful in your plea to reopen the case, you or your counsel must present the Panel with good reasons for failing the first time. It must be a situation where something happened that was beyond your control and the adjudicator missed some very good point in your application, or omitted to assess some very important documents or information.
The same applies to withdrawals of the appeal. The appellant and their counsel must present valid reasons for why the case has been withdrawn in the first place, and the withdrawal was resulted in the event that was beyond control of the appellant.