August 2005
INFORMATION GUIDE
RESIDENCY OBLIGATION APPEAL HEARINGS
The questions and answers below will help you prepare for your residency
obligation appeal hearing. This general information should not be taken
as legal advice.
Since your appeal is from a residency obligation decision made by a
visa officer outside of Canada, you (the appellant) also will usually
be outside of Canada and your hearing will be held by telephone. In some
cases, you will be able to return to Canada and be at your hearing in
person.
1. INTRODUCTION
Where will my appeal hearing take place?
Your appeal hearing will take place at the Immigration and Refugee Board
(IRB),
which has hearing rooms in seven cities across Canada. The location of
your hearing will depend on where you lived in Canada before you left.
You (the appellant) will be participating by telephone.
(If you are in Canada for your hearing, then you will be present
at the IRB hearing
room.)
The IRB is
an independent tribunal. It is not part of the Immigration department,
also known as Citizenship and Immigration Canada (CIC),
and it is not part of the Canada Border Services Agency (CBSA).
Who will decide my appeal?
A Member of the Immigration Appeal Division (IAD)
of the Immigration and Refugee Board (IRB)
will decide your appeal.
Who will be at my appeal hearing?
The IAD Member,
who will decide your appeal, will be at the front of the hearing room. You
will be outside of Canada using a telephone. The people in the IRB hearing
room will all be able to hear you and speak to you by using a speakerphone. (If
you are in Canada for your hearing, then you will be in the IRB hearing
room at a table facing the Member.)
If you chose to have someone in Canada represent you, that person (your
counsel) will be in the hearing room at a table facing the Member. There
will also be a Minister's counsel who will be an officer from the Canada
Border Services Agency (CBSA),
and who will be representing the Minister of Citizenship and Immigration
Canada (CIC). The
Minister's counsel may provide evidence, ask questions to you and other
witnesses, and may make arguments against your appeal.
You or the Minister's counsel may bring witnesses to testify (give oral
evidence). A witness may be in the hearing room or testifying by telephone
from outside of Canada. An interpreter will be in the hearing room for
you or any of your witnesses, if you have asked for one. Members of the
public are also allowed to attend.
Do I need someone to represent me in my appeal?
You do not have to have someone represent you, but you may if you think
that this will help your appeal. There are often legal questions that
need to be argued in the appeal and you need to make sure that your case
is well supported by providing enough evidence. You should also know
that the Minister's counsel will be at your hearing to question you and
other witnesses, and may make arguments against your appeal. If you have
someone to represent you, such as a lawyer or a consultant, or a friend,
relative or trusted member of your community, that person must be available
and prepared to go ahead on the date of the appeal hearing.
Under a regulation in effect on April 13,
2004, if you retain counsel who charges a fee, the counsel must either
be a lawyer (a member of a provincial law society or the Chambre des
notaires du Québec) or an immigration consultant (a member of the Canadian
Society of Immigration Consultants (CSIC)). Any
paid counsel who is not a member in good standing of one of these organizations
is not allowed to represent you at the IAD in
your appeal. If your counsel is an immigration consultant, their name
must be on the CSIC Internet
website at www.csic-scci.ca/indexE.html (click
on “Membership List”).
How will I know when my appeal hearing will take place?
If you do not have a counsel or other contact person in Canada, then
someone from the IAD Registry
Office will contact you by telephone (or sometimes by e-mail or mail)
to arrange for a hearing date or to inform you about the hearing date. The IAD may
require you to pay for the telephone contact by either phoning in to
the IAD or
by providing reliable long distance calling cards – the letter
that the IAD sends
to you has more information about this.
If you do not respond to letters or other communications from the IAD,
or if you do not tell us about changes to your contact information (such
as your address and telephone number), your appeal may be dismissed or
declared to be abandoned.
If you have counsel in Canada to represent you (or if you are in
Canada for your appeal hearing), you and your counsel may receive
a notice from the IAD for
your counsel to appear for the scheduling conference (Assignment Court). If
your appeal is sent to Assignment Court, your counsel must be there
on the date and at the time stated in this notice to appear. At that
time, an IAD Member
will ask questions, to make sure that your case is ready to be scheduled. If
the Member is satisfied that your appeal is ready to be scheduled,
your counsel will be given the date and time for your appeal hearing.
What will happen if my counsel or I cannot appear in person or by telephone
on the appeal hearing date?
When an appeal hearing date is set, you and your counsel (if you have
one) must be ready for the hearing on that date. If you or your counsel
cannot be available, you or your counsel may make an application in writing
to change the date or time of your hearing. But you need very good reasons
before an IAD Member
will allow your application and make a change. This change in date or
time is also called a postponement or an adjournment.
You must provide a copy of your application to the Minister's counsel. You
must also provide your application to the IAD Registry
Office, together with a statement of how and when you provided the copy
to the Minister's counsel. The addresses for the IAD and CBSA/CIC offices
are in the letters or other notices that the IAD sends
to you after you have made your appeal.
In your application (which may be written like a letter), you must:
- State your IAD appeal
file number;
- Explain why you want to change the date or time of your hearing;
- Say whether the Minister's counsel agrees to your request (your counsel,
if you have one, is expected to contact the Minister's counsel to ask
if they agree to the change in date or time; and
- Give at least six new dates on which you are available for your hearing.
These six dates must be within a time period specified by the IAD -
therefore, you should first contact the IAD Registry
Office to find out which weeks or months the IAD has
available for these residency obligation appeal hearings.
The date or time of your hearing will be changed only for a very good
reason. If you do not receive a decision from the IAD on
your application to change the date or time of the hearing, or if the IAD refuses
your application, you must be ready to go ahead for your appeal hearing
on its scheduled date and time. If you do not appear (by telephone or
in person), your appeal may be dismissed or declared to be abandoned.
If the Minister's counsel or the IAD Registry
Office receives your application two working days or less before the
scheduled hearing date, the IAD will
go ahead with your scheduled hearing. At the beginning of that hearing,
you may ask for a change in the date or time of your hearing but you
should be prepared to go ahead that day if your application is denied.
What if I want to come to Canada for my hearing?
If you wish to return to Canada for the hearing of your appeal, you
may need a travel document in some cases to allow you to travel to Canada. In CIC's
decision letter about violating your residency obligation, CIC will
also say if you are entitled to a travel document under section 31(3)(c)
of the Immigration and Refugee Protection Act – you have a right
to have a travel document from CIC if
you have been physically present in Canada at least once in the 365 days
before your examination by the visa officer.
If you are not entitled to a travel document, you may make an application
to the IAD for
an order under section 175(2) of the Immigration and Refugee Protection
Act to enable you to return. Under section 46 of the Immigration
Appeal Division Rules, your application documents must be received
by the IAD and
by the Minister's counsel no later than sixty
(60) days after the Division received your notice of appeal.
As part of your application, you should give reasons why it is necessary
for you to be physically present in Canada for your hearing. The IAD Member
will also receive written arguments from the Minister's counsel before
deciding if you should receive a travel document.
If you are approved for a travel document (from CIC or
from an IAD order), CIC generally
will not give the document to you until one or two months before your
scheduled IAD hearing
date. If you come to Canada for your hearing and you lose your appeal,
then the IAD member
must make a removal order that requires you to leave Canada.
2. PREPARING FOR YOUR APPEAL
What must I show to win my appeal?
One way to win your appeal is for you to show that the decision of the CIC officer
that you violated the residency obligation is wrong in law or wrong in
fact. Under the Immigration and Refugee Protection Act, section
28, a permanent resident must comply with the residency obligation by
being “physically present in Canada” at least 730 days in
every five-year period, or outside Canada for one of the reasons allowed
under the Act or the regulations. Another way to win your appeal is to
show the IAD that
there are strong enough humanitarian and compassionate reasons to allow
your appeal even if the CIC decision
was correct in law and fact. It is your responsibility to show that your
appeal should be allowed and not dismissed.
Here a list of some of the factors that the IAD Member
may consider evidence about:
- dates or periods of times when you have been physically present in
Canada;
- the reasons why you were not in Canada;
- how much you are established in Canada (your connections to Canada);
- the reasons why you left Canada and why you remained outside of Canada;
- how losing your permanent resident status will affect you, including
any hardship you may suffer;
- whether you have family in Canada, including how losing your permanent
resident status will affect them;
- the support you have in Canada from family or other people in the
community;
- the best interests of any child who may be directly affected; and
- any other circumstances that may help the Member decide your appeal.
You should come prepared to deal with all of the reasons the CIC officer
gave for the decision about violating the residency obligation. But the
Minister's counsel or the IAD Member
may also ask you questions about anything dealing with your time in Canada
or outside of Canada, or any humanitarian and compassionate reasons why
you should be allowed to keep your permanent resident status.
Do I have to provide any documents for my hearing?
Documentary evidence can be very important in helping you win your appeal. To
show that the CIC decision
was wrong, or that there are sufficient humanitarian and compassionate
reasons, you may need to provide documents to be used at your hearing.
If you would like to provide documents, you must make two copies of
each document (including any photographs, DVDs or videocassettes). You
must provide one copy to the Minister's counsel. You must also provide
one copy to the IAD Registry
Office, together with a statement of how and when you provided the documents
to the Minister's counsel. The addresses of the IAD and CBSA/CIC offices
are in the letters or other notices that the IAD sends
to you after you have filed your appeal. The documents must be received
no later than 20 days before
the hearing. Under the IAD Rules,
you should allow for 20 days or more for any mail from outside of Canada
to be received by an office in Canada.
Before your hearing, the Minister's counsel will have provided you and
the IAD with
the appeal record. These are the documents in the CBSA/CIC file
that are related to your appeal. The IAD Rules
require the Minister's counsel to provide the appeal record no later
than 120 days after the Minister's counsel received your notice of appeal. The
Minister's counsel may also provide other documents for the hearing,
no later than 20 days before
the hearing. You have a chance to provide documents in response to the
documents from the Minister's counsel – these documents must be
received no later than 10 days before
the hearing. This exchange of documents is called “disclosure.” If
you or the Minister's counsel do not disclose documents properly, then
those documents cannot be used at the hearing unless the IAD Member
allows this to be done.
If your documents are not in English or French, they must be translated. The
translations and a translator's declaration must be provided together
with the copies of the documents to the IAD and
to the Minister's counsel. The translator's declaration must include:
- the translator's name,
- the language translated; and
- a statement signed by the translator that the translation is accurate.
Even if you have provided copies of your documents before the hearing,
if you or your counsel are in Canada for the hearing, the original documents
should be brought to the hearing room, if available.
Can I have witnesses at my hearing?
You may have witnesses at your hearing if you think this will help your
appeal. Witnesses must be prepared to answer questions at your hearing
(this is called testifying or giving testimony). Witnesses may be present
in the IAD hearing
room or they may testify by telephone. In some cases, more than one person
may be participating in the hearing by telephone at the same time – for
example, you and another witness or perhaps another family member who
is also part of the same appeal. In these cases, please contact the IAD Registry
Office to discuss whether any special arrangements are needed.
No later than 20 days before
the hearing, you must provide certain information regarding your witness
to the IAD and
the Minister's counsel. In writing, you must:
- state the witness's contact information (address, and telephone and
fax numbers),
- how long the testimony will take,
- your relationship to the witness, and
- whether you want the witness to testify in person, by videoconference
or by telephone.
If the witness is an expert, you must also include a report signed by
the expert giving their qualifications and summarizing their evidence.
If you do not properly provide the witness information, the witness
will not be able to testify unless the IAD Member
allows the witness to testify.
It is your responsibility to make sure your witness or witnesses can
testify at your appeal hearing, whether in person or by telephone or
videoconference (generally at your expense). If your witness is in Canada,
and you want to make sure that your witness will appear in person, you
may ask the IAD Registry
Office for a summons, which is an IAD order
to appear at the hearing that the witness must obey. There are special
rules for providing a summons to a witness, along with witness fees and
travel expenses – for more information, contact the IAD Registry
Office.
What if I need an interpreter?
The documents and the hearing in your appeal will be in the official
language that you have chosen in the notice of appeal – either
English or French. If you or any of your witnesses need an interpreter,
you must notify the IAD Registry
Office either in writing no later than 20
days before your appeal hearing, or in person at the scheduling
conference (Assignment Court) if there is one. You must indicate the
language and dialect (if any) that you or your witness needs. The IAD will
provide an interpreter in the hearing room at no cost to you.
What if my witness is not in Canada?
If your witness is in another country, you may ask the IAD Member
to allow that witness to testify at your appeal hearing by telephone. You
must tell the IAD before
the appeal hearing, and you must make sure that your witness can be reached
by telephone at the time of your hearing. Since you must pay for the
call, you (or your counsel or contact person in Canada) must provide
a calling card from your telephone company that you can use to charge
the call to a telephone number, or provide a reliable long distance phone
card. Note that the IAD will
not allow you to use any phone card with less than two hours' international
calling time available. Also, some companies' calling cards may not work
very well, and if there are problems, the IAD Member
might decide to go ahead without hearing from your witness.
3. YOUR APPEAL HEARING
What will happen at my appeal hearing?
(a) You will testify
If you have counsel, your counsel will begin by asking you questions
so that you can give evidence related to your appeal. Before testifying,
the IAD Member
will ask witnesses to affirm (that is, solemnly promise) that they will
tell the truth. Witnesses (including you as the appellant) who do not
want to affirm but instead want to swear an oath to tell the truth should
have their own holy book with them. If you do not have counsel, you may
tell the IAD Member
what you think is important or you may ask the Member to ask you questions
that the Member thinks are needed to decide your appeal. The Minister's
counsel will also question you on the evidence that you have given at
the hearing because the Minister's counsel may argue against your appeal.
(b) Witnesses will testify
Generally, any witnesses you have will testify after your testimony. If
your witness is using the telephone and you are also participating in
the hearing by telephone, then your witness should be in the same location
as you are, if possible, but in a separate room until they are called
to the telephone to testify. If your witness is in another location,
then you (or your counsel or contact person in Canada) must provide a
telephone calling card with at least two hours available time, and the IAD will
make a conference call so that both you and your witness can be on the
phone with the hearing room at the same time.
Your counsel may question the witnesses or, if you do not have counsel,
you may question the witnesses or ask the IAD Member
to do so. The Minister's counsel will also be able to question the witnesses
and can also bring witnesses to testify. You have the right to question
any witnesses brought by the Minister's counsel.
(c) Arguments will be made
After you and the witness or witnesses have testified, the IAD Member
will ask you or your counsel to make the arguments or submissions in
your case – this means explaining why you think the evidence shows
that the Member should allow the appeal. The Minister's counsel will
also be asked whether he or she thinks you have proven your case. You
will then be asked to respond to the submissions of the Minister's counsel.
When will I know the decision in my appeal?
The IAD Member
may be able to decide your appeal and give reasons for the decision at
the end of the hearing. If not, the Member will tell you that the decision
and reasons will be sent to you by mail at a later date, usually no later
than 90 days after the hearing.
4. MORE INFORMATION
If you would like more information, you may use
the IRB's Internet
web site at www.irb-cisr.gc.ca or you
may visit the IRB's
Documentation Centre at our offices. There, you will find the following
information:
- IMMIGRATION AND
REFUGEE BOARD OF CANADA: AN OVERVIEW
This document provides basic information on the IRB,
including the types of appeals heard at the IAD and
the appeal process.
- REFLEX
This is a publication of summaries of selected recent immigration
and refugee law decisions since May 1991, and includes IAD decisions
realted to this type of appeal.
- IMMIGRATION
AND REFUGEE PROTECTION ACT
- IMMIGRATION
AND REFUGEE PROTECTION REGULATIONS
- IMMIGRATION
ACT and IMMIGRATION
APPEAL DIVISION RULES
The Rules and Commentaries provide you with details and procedures about
such matters as scheduling your hearing, and changing the date and time
of your hearing.
NOTE: You may also want to look at the CIC website,
which has information about how CIC officers
make their decisions and what factors they look at (see www.cic.gc.ca). But
please remember that the IAD is
independent from CIC. An IAD Member
makes a decision after considering the evidence and arguments from you
and CIC,
and then applying the law.
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