Removal During Federal Court Process (After RAD): A General Summary

If you make a refugee claim, a removal order is made against you which becomes a deportation order if your case ends unsuccessfully and you do not leave within a specified period of time.

If you lost your refugee claim at the Refugee Protection Division (RPD), and appealed to the Refugee Appeal Division (RAD), then the removal order will come into force, but be “stayed” (put on hold) while you are applying to the Federal Court. This stay of removal is automatic (as long as you apply to the Federal Court on time, and don’t fall under a handful of exceptions) under s. 231 of the Immigration Regulations. You will continue to benefit from most of the conditions from which you benefited when your case was before the RPD and RAD (health care, access to a work permit, ability for children to attend school), although the processes for applying may be different, you may need to pay processing fees, and you may be granted shorter permits.

If the automatic stay does not apply to you, you can ask the Court to stay (put on hold) your removal while your case is ongoing.

Redetermination: A General Summary

In most cases, following a successful judicial review, your case is sent back to be re-determined “de novo” (meaning “as if it were new”) by the decision-making body (but usually a different specific decision-maker). The record from your previous case will still be in front of the new decision-maker, unless there is a specific reason for it to be excluded. However, you will also have an opportunity to present new arguments and evidence.

Sometimes the law will be fixed at the point at which your case was originally filed or decided. For example, if you were eligible for a program when you were refused, but are no longer eligible, the case may be redetermined as if your eligibility was “frozen” during the previous application (this is often the case, for example, when dealing with dependent children who were young enough to be sponsored when a case was originally refused, but passed the age limit during the Federal Court case). However, not everything is fixed. For example, if during the Federal Court case you have obtained a criminal conviction which renders you ineligible to come to Canada, the decision-maker won’t overlook that.

Having your case redetermined after succeeding at Federal Court can, unfortunately, take almost as long as the original case took to decide; this depends very much on the kind of decision being redetermined.

Applications for Leave and Judicial Review: A General Summary

At Federal Court, you do not file an “appeal”, but rather an “application for leave” for “judicial review”. The application is for “leave” in the sense of “permission”, so you are applying for “permission” to proceed to the second stage, “judicial review”. The first stage (“application for leave”) is as follows:

  • Within 15 days of receiving the decision, you file a notice with the Court and the government, which tells them you are challenging the decision (and what decision, and when you received it, and very generally why you are challenging it)
  • After filing the notice, you have 30 days to file your Application Record, which contains a copy of the notice, the decision, all of the evidence that the decision-maker had or ought to have had that you are relying on, and your arguments for why the decision should be overturned
  • After you file the Application Record, the government has 30 days to file their arguments; they may also file evidence which was or ought to have been before the decision-maker, but it is not common
  • After the government’s written arguments, you have 10 days to submit written reply arguments
  • When all of these stages have been completed, your application for leave is said to have been “perfected”, meaning all of the standard paperwork has been filed

There are some events which can change this timeline. For example, if necessary you or the government may need to request extra time from the Court, and as long as there is some merit to your case and you have a reasonable explanation for the delay, and the other side doesn’t suffer for it, the Court will usually grant the request. From December 21 to January 7 the Court is in recess and time is not usually counted (but sometimes is). Your “perfected” application goes to a judge of the Federal Court (there is no way of knowing which one), and the judge can make one of two decisions:

  • Dismiss the application, in which case there are no reasons given and no way to appeal; or
  • Allow the application, in which case the judge will also set a hearing date 90 days in the future, with some due dates in between to file additional arguments and evidence

Occasionally a judge will order the decision-making body to produce the complete certified tribunal record before making a final decision on the application for leave, and ask if the parties are willing to settle. This usually suggests that they are likely to grant/allow the application for leave, and there is almost never a settlement (because there is rarely any position in between what the applicant is asking for and nothing).

If the application for leave is allowed, then the next major step is the judicial review hearing. While you do not need to attend your hearing (your counsel and the government’s counsel will be presenting arguments to the judge), it is a good idea to do so, as it is the only chance the judge will have to see that you are a real person and to see your face. You will not need to testify, but will sit in the audience. Federal Court hearings are open to the public, but are rarely attended by anyone not involved in the case.

There are generally two ways that a judge can decide a judicial review:

  • Grant or allow the application for judicial review, in which case they will give reasons; or
  • Dismiss the application for judicial review, in which case they will issue reasons, but there can only be an appeal if the judge themselves agrees that there is an important question of law to be determined on the case

The reasons why this is a “judicial review” and not an “appeal” are that no new evidence is allowed (no matter how much it might change the situation), and that the judge cannot decide based on whether or not they agree with the challenged decision, but rather on whether it was made fairly and reasonably. This means that a judge might completely disagree with a decision, but still refuse the judicial review application because the decision was “reasonable”.

In the Canadian system, a judge cannot order that you should be found a refugee. All that a judge can do is grant the judicial review application, and order that the case be re-determined, usually by a different decision-maker. Sometimes a judge will give more specific directions about the treatment of evidence or how the case should proceed, but usually not.

The entire process takes, very approximately, one year.

2020 and 2021 Parents and Grandparents Program

IRCC has just issued a release: “Government of Canada announces details for opening of 2020 Parents and Grandparents Program“, today, October 5, 2020. The content is below:

The Honourable Marco E. L. Mendicino, Minister of Immigration, Refugees and Citizenship, today announced details for the opening of the 2020 Parents and Grandparents (PGP) Program, building further on the government’s commitment to reuniting families.

Over a 3-week period, from 12 p.m. EDT on October 13, 2020, to 12 p.m. EST on November 3, 2020, Canadians and permanent residents who wish to sponsor their parents and grandparents to come to Canada will have an opportunity to submit an interest to sponsor form online.

In order to ensure a fair, transparent and equal opportunity for applicants, Immigration, Refugees and Citizenship Canada (IRCC) will randomly select potential sponsors and send them an invitation to submit an application. Selected applicants will have 60 days to submit their application.

Accommodation is available to persons with disabilities who are unable to use the online form. They can request the interest to sponsor form in an alternative format (paper copy, Braille or large print) by contacting the IRCC Client Support Centre at 1-888-242-2100 or by email until November 3, 2020.

Given that many sponsors may have been financially impacted by the exceptional circumstances of the COVID-19 pandemic, IRCC is introducing a temporary public policy that will reduce the income requirement for the 2020 tax year to the minimum necessary income, instead of the minimum necessary income plus 30%.

The government knows how important it is for families to be together, particularly during difficult times. The launch of the 2020 Parents and Grandparents Program builds on the government’s initiatives to prioritize the approval of 49,000 family sponsorship applications by December 31, 2020, as well as last week’s announcement of a process to reunite more families and approve compassionate cases within the current border restrictions.

A maximum of 10,000 applications will be accepted for processing as part of the 2020 PGP intake. In 2021, IRCC will open a new intake of interest to sponsor forms to accept a total of 30,000 new applications.

[…]

Quick facts

– The Government of Canada is committed to ensuring that the PGP Program is accessible and fair for all Canadians and permanent residents. IRCC worked with stakeholders on ways to better accommodate persons with disabilities in developing the 2020 program design.

– Due to COVID-19, the launch of the 2020 PGP Program was delayed to allow the Government of Canada to prioritize its efforts to contribute to the whole-of-government response to the global pandemic.

Associated links

Backgrounder: How will the 2020 Parents and Grandparents Program intake process work?

Ministerial Instructions

Temporary public policy for family class

Submit the interest to sponsor form

Check if you’re eligible

Help Centre: Frequently asked questions about sponsorship of parents and grandparents