A right of appeal to the Immigration Appeal Division (IAD) exists only where section 63 of the Immigration and Refugee Protection Act creates one, and section 64 then takes it away again for certain grounds of inadmissibility. The IAD is the branch of the Immigration and Refugee Board that hears sponsorship appeals, removal order appeals, residency obligation appeals and appeals by the Minister. A person who is not named in section 63, or who falls under section 64, cannot appeal to it at all, however strong the facts.
Angelina Shuster is a paralegal licensed by the Law Society of Ontario, and representation before the tribunals of the Immigration and Refugee Board, including the Immigration Appeal Division, falls within a licensed paralegal's scope. This article is general information about the wording of the Act and the IAD's rules. It is not legal advice, and reading it does not create a paralegal-client relationship.
Who has a right of appeal to the IAD?
Section 63 creates five rights of appeal, four for individuals and one for the Minister. Each is tied to a particular kind of decision, and the right belongs to a particular person: in a sponsorship appeal it is the sponsor who appeals, not the relative who was refused.
| Subsection | Who may appeal | Against what decision |
|---|---|---|
| 63(1) | A person who filed an application to sponsor a member of the family class in the prescribed manner | A decision not to issue the relative a permanent resident visa |
| 63(2) | A foreign national who holds a permanent resident visa | A removal order made under s. 44(2) or at an admissibility hearing |
| 63(3) | A permanent resident or a protected person | A removal order made under s. 44(2) or at an admissibility hearing |
| 63(4) | A permanent resident | A decision made outside Canada on the residency obligation under s. 28 |
| 63(5) | The Minister | A decision of the Immigration Division in an admissibility hearing |
Everything turns on the words of each subsection. Subsection 63(1) covers the family class only, so a refused economic-class application has no IAD appeal. Subsection 63(3) covers removal orders against permanent residents, so a permanent resident found to be inadmissible at a port of entry or inside Canada can appeal, while a visitor, student or worker given the same order generally cannot.
Who has no right of appeal to the IAD?
Anyone whose situation is not described in section 63, and anyone caught by section 64. The first group is larger than most people expect, because section 63 says nothing about temporary residents or about applications outside the family class.
- Temporary residents and people without status. A visitor, international student or foreign worker who receives a removal order does not appear in section 63 unless they already hold a permanent resident visa.
- Refugee claimants. A claim refused by the Refugee Protection Division goes to the Refugee Appeal Division, a different division with its own rules and limits, described in the article on what the Refugee Appeal Division can and cannot do.
- Economic and other non-family applications. A refused skilled worker, provincial nominee or visitor visa application has no IAD appeal.
- Humanitarian and compassionate applications under section 25. These are decided by IRCC officers, and a refusal is not a decision listed in section 63.
- The relative being sponsored. The right under 63(1) is the sponsor's. The parent, spouse or child abroad is not the appellant.
Where no appeal exists, the remaining route is usually an application for leave and judicial review in the Federal Court under section 72. Judicial review examines whether the decision was reasonable and procedurally fair; it does not hear the evidence again, and the time limit is 15 days for a matter arising in Canada and 60 days for a matter arising outside Canada.
Which grounds of inadmissibility remove the right of appeal?
Section 64(1) removes the appeal of a sponsor, a foreign national and a permanent resident where the person has been found inadmissible on grounds of security, violating human or international rights, sanctions, serious criminality or organized criminality. The bar applies even to a permanent resident who has lived in Canada for decades.
Serious criminality has a narrower meaning here than in section 36. Under section 64(2), it covers only a crime that was punished in Canada by a term of imprisonment of at least six months, or a conviction or act outside Canada described in paragraphs 36(1)(b) or (c) — an offence that, if committed in Canada, would carry a maximum term of at least ten years. A permanent resident convicted in Canada of an offence with a ten-year maximum but sentenced to less than six months of imprisonment is inadmissible for serious criminality and still keeps the appeal.
| Finding of inadmissibility | Appeal to the IAD? | Provision |
|---|---|---|
| Security, human or international rights violations, sanctions, organized criminality | No | s. 64(1) |
| Serious criminality with a Canadian sentence of six months or more, or described in s. 36(1)(b) or (c) | No | s. 64(1)–(2) |
| Serious criminality with a Canadian sentence under six months | Yes, if the person is within s. 63 | s. 64(2) |
| Misrepresentation, family-class refusal of a spouse, common-law partner or child | Yes | s. 64(3) |
| Misrepresentation, family-class refusal of any other relative | No | s. 64(3) |
| Misrepresentation, removal order against a permanent resident | Yes | s. 63(3) |
The misrepresentation rule in section 64(3) applies only to sponsorship appeals. It does not affect a permanent resident appealing a removal order made for misrepresentation, which remains appealable. The wording of the misrepresentation provision itself is covered in the article on section 40 of IRPA.
Is a sponsorship appeal always a full appeal?
No. Section 65 limits what the IAD may consider in a family-class appeal. Humanitarian and compassionate considerations may be weighed only once the IAD has decided that the relative is a member of the family class and that the sponsor is a sponsor within the meaning of the Regulations.
That limit matters most where the refusal rests on the definition of the family class itself — for example, a relationship the Regulations exclude, or a family member who was not examined when the sponsor immigrated. The appeal can still be filed, but it is confined to whether the refusal was correct in law and fact; the IAD cannot reach the humanitarian circumstances of the family. Where the refusal rests on something else, such as the sponsor's income or the relative's medical condition, section 65 does not stand in the way. How these refusals play out for parents and grandparents is set out in the article on refused parents and grandparents sponsorships.
What can the IAD do once an appeal is properly before it?
Under section 66, the IAD allows the appeal, stays the removal order, or dismisses the appeal. Section 67(1) allows an appeal where, at the time the appeal is decided, the decision was wrong in law or fact, a principle of natural justice was not observed, or sufficient humanitarian and compassionate considerations warrant special relief, taking into account the best interests of a child directly affected.
The humanitarian ground is not available on an appeal by the Minister. It is, however, the ground on which a stay of a removal order is granted under section 68. A stay leaves the removal order in place but suspends it on conditions the IAD sets, and the IAD may reconsider the appeal later. Section 68(4) cancels a stay automatically, and terminates the appeal, where a person found inadmissible for criminality is convicted of another offence referred to in section 36(1).
The appeal also affects when a removal order takes effect. Under section 49(1), an order that can be appealed does not come into force until the appeal period has expired without an appeal, or until a final determination confirms it. The effect of each kind of order is compared in the article on departure, exclusion and deportation orders.
How long is there to file an appeal?
The time limits are set by rule 16 of the Immigration Appeal Division Rules, 2022, and each runs from the day the appellant receives the decision, not the day it was made.
| Type of appeal | Notice of appeal must be received within |
|---|---|
| Sponsorship appeal | 30 days after the appellant receives the officer's decision and written reasons |
| Removal order appeal | 30 days after the appellant receives the removal order |
| Residency obligation appeal (decision made outside Canada) | 60 days after the appellant receives the officer's decision and written reasons |
| Minister's appeal | 30 days after the Minister receives the Immigration Division's decision |
A removal order made at an admissibility hearing can also be appealed on the spot: rule 14 allows the notice of appeal to be handed to the Immigration Division member at the end of the hearing. The deadline is for the notice to be received by the Division, so a notice mailed on the last day is late.
After the notice is filed, the Minister or the Immigration Division prepares an appeal record containing the documents the decision was based on. Under rule 26, each party's own documents are due 60 days after that party receives the appeal record. The preparation of that material, and how a full hearing runs, is covered in preparing for a full hearing at the Immigration Appeal Division.
How does Karb Law work with IAD appeals?
Karb Law represents appellants before the Immigration Appeal Division on sponsorship appeals, residency obligation appeals and removal order appeals. Our legal team assists with the full range of your matter, including applications filed with IRCC. A refusal letter or removal order can be reviewed through a free assessment, and whether a right of appeal exists is usually the first question that review answers.
This article is general information, not legal advice. Whether an appeal exists depends on the decision, the person's status and the ground of inadmissibility found.
