Canadian Immigration Appeals Explained: When and How to Challenge an IRCC Decision

That said, not every refusal can be challenged. And the process isn’t the same in all cases — it can depend on the type of application and why it was refused.

You may also get a chance to address concerns raised by Immigration, Refugees and Citizenship Canada (IRCC) before a final decision is made.

This guide explains the differences between a Procedural Fairness Letter (PFL) response, reconsideration requests, appeals, and judicial review.

Key Takeaways

• Not every Canadian immigration refusal can be appealed, but other options may be available to challenge the decision.
• Responding to a Procedural Fairness Letter allows you to address concerns before a final decision is made.
• Reconsideration requests, immigration appeals and judicial reviews are different processes, each with its own requirements.
• Deadlines for appeals and judicial reviews can be short, so it is important to act quickly.

Who Makes Immigration Decisions in Canada?

Before we get into how to challenge decisions, let’s look at who makes immigration decisions.

Immigration, Refugees and Citizenship Canada (IRCC)

IRCC is the primary decision-maker in most immigration matters. IRCC officers process and make decisions on many immigration applications. This includes applications for permanent residence, work permits, study permits and visitor visas.

When assessing an application, IRCC officers look at whether the applicant is eligible for a particular program, and whether they are admissible to Canada. They can approve or refuse applications and can ask applicants for additional information.

Canada Border Services Agency (CBSA)

The CBSA is responsible for enforcing Canada’s immigration laws. This includes investigating inadmissibility matters, issuing and enforcing removal orders.

CBSA officers also conduct port-of-entry interviews and checks to determine whether travellers meet the requirements to enter Canada.

Immigration and Refugee Board of Canada (IRB)

The IRB is an independent tribunal responsible for deciding certain immigration and refugee matters. Think of it as a court but slightly less formal.

The IRB operates separately from IRCC and CBSA, and has four separate divisions:

• Immigration Division (ID): Conducts admissibility hearings and can issue removal orders. It also conducts immigration detention reviews.
• Immigration Appeal Division (IAD): Hears appeals on certain matters, such as family sponsorship, removal orders, and permanent residency obligations.
• Refugee Protection Division (RPD): Decides eligible refugee protection claims made by individuals seeking protection in Canada.
• Refugee Appeal Division (RAD): Reviews certain decisions made by the RPD, where a right of appeal exists.

Federal Court of Canada

The Federal Court can conduct judicial reviews of decisions made by government departments, courts and tribunals.

To challenge an immigration decision before the Federal Court, you must apply for leave and judicial review. The Court first decides whether to grant leave, which determines whether the application can proceed to a judicial review hearing.

If the Court finds that the original decision-maker made an error, was unfair or unreasonable, it can set aside the decision and send the matter back for reconsideration.

How Can You Respond to Immigration Concerns or Challenge a Decision?

Your options depend on whether a decision has already been made.

If an immigration officer raises concerns while reviewing your application, you may have an opportunity to respond before a final decision.

Once a decision has been made, different processes may be available to seek reconsideration or challenge the outcome.

Responding to a Procedural Fairness Letter (PFL)

Applicants may get a PFL if an immigration officer raises concerns about their application. A PFL is not a refusal, it is an opportunity to respond to the officer’s concerns before they make a final decision.

For example, an officer might question the authenticity of a document, your employment history, or whether you meet certain eligibility requirements.

A PFL may also be issued if there are inconsistencies in your application (or between your current and past applications).

You can respond by providing explanations and supporting evidence addressing the officer’s concerns.

Does this mean officers will flag any concerns they have about your application? Not always. PFLs are generally issued over credibility concerns. However, officers are not required to issue a PFL just because there is insufficient supporting evidence.

When should you respond to a PFL? Before the deadline specified in the letter. If you do not respond, IRCC will make a decision based on the information already available. You may be able to ask for additional time, if needed.

Requesting Reconsideration of an Immigration Decision

If your application is refused, you can ask the original decision-maker to reconsider the decision.

A reconsideration request can be useful if you believe the officer made an error. For example, an officer may have overlooked a document you submitted.

However, reconsideration is not a formal process and is discretionary. The decision-maker does not have to reopen your application simply because you disagree with the outcome.

When should you request reconsideration? As soon as possible after identifying a potential error.

Filing an Immigration Appeal

An immigration appeal is a formal legal process available for certain types of decisions.

Depending on the decision, an eligible appeal may be heard by the Immigration Appeal Division (IAD) or Refugee Appeal Division (RAD) of the IRB.

An appeal allows an authorized tribunal to examine the decision under the legal rules that apply to that type of case.

Proceedings before the IRB are less formal than those before the Federal Court. That said, it might still be beneficial to work with an immigration consultant or lawyer for an appeal.

When should you file an appeal? If you have a legal right to appeal, you must file within the applicable deadline.

Applying for Judicial Review

Judicial review allows you to ask the Federal Court to examine the initial decision

A judicial review is not an appeal. It is an assessment of whether a particular decision is lawful, reasonable, and procedurally fair. It is much narrower than an appeal, which often reassesses the merits of a case.

In immigration matters, you generally must get the Court’s permission, or leave, before the judicial review can proceed.

Immigration consultants cannot represent clients on matters before the Federal Court. You can represent yourself (not usually advisable) or hire a lawyer to represent you.

When should you apply? The usual deadline is 15 days for matters arising in Canada and 60 days for matters arising outside Canada. Different rules can apply to certain cases.

Which Canadian Immigration Decisions Can Be Appealed?

The Immigration Appeal Division (IAD) handles several types of appeals, including:

• Family sponsorship refusals: Eligible Canadian citizens and permanent residents can appeal certain decisions refusing their applications to sponsor family members. Usually, IAD appeals are only allowed for Family Class sponsorship, and not for Spouse or Common-Law Partner in Canada Class (SCLPC) applications.
• Removal orders: Certain permanent residents, protected persons, and other eligible individuals may appeal orders requiring them to leave Canada.
• Permanent resident residency obligations: Permanent residents who are found not to have met their residency requirements may be able to appeal.

There are exceptions and restrictions, including for certain inadmissibility findings.

If your visitor visa, study permit, or work permit application is refused, there is generally no right of appeal to the IAD.

Refugee claim refusals may be appealed to the Refugee Appeal Division (RAD), where eligible, under a separate process.

Which Immigration Decisions Cannot Be Appealed to the IRB?

Not every Canadian immigration decision can be appealed to the Immigration and Refugee Board.

For example, there is generally no right to appeal to the IRB if your application for one of the following is refused:

• A visitor visa or electronic travel authorization (eTA)
• A study permit
• A work permit
• Permanent residence through Express Entry or a Provincial Nominee Program (PNP)
• Canadian citizenship

Certain applicants who are inadmissible due to serious criminality or other grounds may not be eligible to file an appeal.

If you cannot appeal a decision, you may still be able to request reconsideration, submit a new application, or seek leave for judicial review by the Federal Court.

What Are the Grounds for an Immigration Appeal?

Simply disagreeing with a decision is not necessarily enough to succeed. Depending on the type of appeal, you may be able to challenge a decision on grounds such as:

• Errors of law or fact, such as incorrect application of immigration law or disregarding important evidence.
• Procedural unfairness, such as failing to provide a fair opportunity to respond.
• Humanitarian and compassionate (H&C) considerations even where the original decision was legally correct.In certain appeals before the IAD, personal or family circumstances may justify special relief.

H&C relief is not available in appeals before the Refugee Appeal Division (RAD or through judicial review by the Federal Court.

How Does the Canadian Immigration Appeal Process Work?

The process depends on the type of appeal. For appeals before the Immigration Appeal Division (IAD), you must file a Notice of Appeal within the applicable deadline:

• Family sponsorship refusals: 30 days
• Removal orders: 30 days
• Residency obligation decisions made outside Canada: 60 days

These deadlines generally begin when you receive the relevant decision or order.

After filing, you can submit evidence explaining why the decision should be changed. Some IAD appeals may be resolved through alternative dispute resolution, while others require a formal hearing.

Refugee Appeal Division (RAD) appeals are generally written proceedings. There are restrictions on new evidence submission and oral RAD hearings are held only in limited circumstances.

A successful appeal does not always mean immediate immigration approval. An appeal may be allowed or dismissed, or the case may be sent back for a new decision. In some cases, a removal order may also be temporarily put on hold.

Can You Challenge an Immigration Decision in Multiple Ways at the Same Time?

Yes. Depending on your circumstances, you may be able to pursue more than one option, but there are restrictions.

For example, you may request reconsideration of an IRCC refusal while also applying for judicial review by the Federal Court. However, requesting reconsideration does not pause or extend the deadline for judicial review.

If you have a right to appeal to the IRB, you must exhaust those appeal rights before seeking judicial review by the Federal Court.

You may also be able to submit a new immigration application while challenging an earlier refusal.

What Should You Do If Your Canadian Immigration Application Is Refused?

Start by carefully reading your refusal letter. Try to understand why IRCC refused your application.

Your next step depends on whether there was an error in the decision, whether submitting a new application would address the refusal reasons, and whether you have a right to appeal.

Time is of the essence if you want to appeal or challenge a decision because deadlines for appeals and judicial review are quite short.

A Canadian immigration consultant or lawyer can help you understand your options, so do not delay seeking advice.

Remember, a refusal does not always mean the end of your Canadian immigration plans, but choosing the correct next step is important.