CBA National Citizenship and Immigration Law CLE Conference
May 16-17, 2008
Workshop: Best Practices before the Immigration Appeal Division
A paper prepared for the Conference by Shari A. Stein, A/Deputy Chairperson of the Immigration Appeal Division of the Immigration and Refugee Board is quite instructive.
As a Member of the IAD, Stein provides invaluable advice to counsel appearing before the appeal division of the IRB.
While the IAD hears four types of appeals, the most prevalent are sponsorship appeals - requests to reconsider the refusal of a visa officer who is overseas with respect to a family class sponsorship. One example is where a sponsorship of a spouse is refused by a visa officer who has found reason to believe that the marriage is not genuine (a marriage of convenience).
In this case, the appellant has the burden - on a balance of probabilities - that either: the marriage was genuine or was not entered into primarily to facilitate immigration.
Stein notes that the numbers of sponsorship appeals have been steadily increasing and that they comprise almost 80% of the cases heard before the IAD.
Other appeals include an appeal from a removal order, which concerns a permanent resident who has run afoul of criminality or even misrepresentation - discussed in Shoshana Green's article (discussion on which will be posted asap).
The third type of appeal is an appeal from loss of permanent resident status. Permanent Residency carries with it a residency obligation, which requires presence in Canada for approximately 2 years in a (rolling) 5 year period.
The fourth, and likely irrelevant type of appeal for most readers, is an appeal from a decision by the Minister of Public Safety and Emergency Preparedness.
Stein discusses the IAD Innovation initiative – (NB additional information can be found on the IRB website).
What I found most helpful in the paper concerned practice tips for proactive counsel. Stein notes that counsel ought to be well-informed on latest developments and jurisprudence. Counsel should have familiarity with the IAD Rules - most importantly the deadlines for filing a Notice of Appeal and (in my opinion: deadlines and other details regarding disclosure, like having an index, consecutive page numbering and 81/2 x 11" paper size).
Determine - early on, in Stein's opinion - the following (inter alia):
Whether the basis of the appeal is law or discretion (or both);
What is needed to put forth a solid and focused legal argument; and
Whether witnesses are likely/necessary.
Stein encourages early disclosure and contacting CBSA with a view to perhaps resolving the matter. Other recommendations include preparing the appellant and other witnesses, and agreeing with CBSA on facts and limiting issues in dispute, and of course ensuring you and the appellant arrive on time or early.
During the hearing, Stein recommends that counsel focus on the key issues in dispute, avoid leading questions, and avoid repetition in submissions.