What is actually available after a refusal
The word appeal is used loosely, and the difference between the things it might mean is the difference between a real remedy and a wasted year. Most refusals carry no appeal. That is not the same as carrying no remedy.
| What was refused | Appeal | What is available |
|---|---|---|
| A visitor visa, study permit, work permit or electronic travel authorisation | None. There is no appeal from a temporary residence decision | A fresh application where something has genuinely changed, or judicial review in the Federal Court |
| A sponsored family member's permanent residence | Yes, by the sponsor, to the Immigration Appeal Division, within thirty days | The appeal, unless a bar applies. Then judicial review |
| Permanent residence in an economic class | None to the Immigration Appeal Division | Judicial review, and reapplication where the defect is curable |
| A removal order against a permanent resident or protected person | Yes, to the Immigration Appeal Division, within thirty days | The appeal, unless a bar applies |
| A residency obligation decision made outside Canada, against a permanent resident | Yes, to the Immigration Appeal Division, within sixty days, the window being longer because you are outside Canada | The appeal |
| Anything, where inadmissibility was for security, human or international rights violations, sanctions, serious criminality or organised criminality | None | Judicial review, and the inadmissibility cures where they apply |
Serious criminality for the purpose of the appeal bar means a crime punished in Canada by at least six months of imprisonment, or one of the foreign conviction grounds. A sponsorship refusal grounded in misrepresentation also carries no appeal, unless the person refused is your spouse, partner or child.
- Thirty days for most appeals, but sixty for a residency obligation appeal. Thirty days from receipt of the officer's decision and the written reasons, if any, for a sponsorship appeal, a removal order appeal or a Minister's appeal. Sixty days for a residency obligation appeal, because the appellant is outside Canada. For a removal order the notice may instead be given to the Immigration Division member at the hearing.
- Fifteen days for judicial review, or sixty from abroad. From when you were notified or became aware. Extendable for special reasons, and only after any appeal right has been exhausted.
- Judicial review tests the decision, it does not retake it. The question is unreasonableness or an error of law or fairness. It is decided summarily, usually without a personal appearance, and there is no appeal from the leave decision or an interlocutory judgment.
- After an appeal is filed there are further clocks, and they differ by appeal type. The appeal record is due sixty days after the Minister receives the request in a sponsorship or residency obligation appeal, but thirty days in a Minister's appeal or an appeal of a removal order made at an admissibility hearing, where it is produced by the Immigration Division rather than the Minister, and thirty days in an appeal of a removal order made at an examination. Your own disclosure is then due sixty days after you receive that record, and responding documents no later than thirty days before the date fixed for the proceeding. Not responding can lead to the appeal being declared abandoned.
- Reapplying is a strategy only where facts have changed. The department's own position is that the same application filed again will likely produce the same result.
Misrepresentation, and why it is the one to avoid
Five years, and a bar on applying for permanent residence throughout
Misrepresentation means directly or indirectly misrepresenting or withholding material facts relating to a relevant matter, where that induces or could induce an error in the administration of the Act. Withholding counts. Indirect misrepresentation counts. It is enough that an error could have been induced.
The consequence is five years of inadmissibility, and during those five years you may not apply for permanent residence at all. The clock runs from a final determination if you are outside Canada, and from the day a removal order is enforced if you are in Canada, so the five years may start much later than you expect.
This is why disclosure is the theme of this whole branch. A criminality problem has four named cures. A medical problem is usually about a number that can be corrected. A misrepresentation finding sits on top of whichever problem you were trying to avoid explaining, and removes most of the routes through it for five years.
- It reaches beyond your own conduct. Being sponsored by someone found inadmissible for misrepresentation is itself a ground, though only where the Minister is satisfied the facts justify it.
- It follows you into other applications. An exclusion order for misrepresentation blocks return for five years rather than the usual one, an authorisation to return costs $492.50, and misrepresentation bars a grant of citizenship for five years.
- The cure is disclosure, before the fact. There is no mechanism that undoes a misrepresentation finding the way rehabilitation undoes criminality. The only reliable protection is having disclosed properly in the first place, which is free.