Urgent quetion on judicial review of IAD decision

[gacr]

Hi everyone, my friend's appeal with IAD has been dismissed. He is wondering how he could "make an application to the Federal Court for judicial review". Can he (outside Canada) or his family member in Canada apply or does it have do be done by a lawyer (he wasn't represented by lawyer in the IAD appeal)? If a lawyer is required, what's the best approach to finding one from overseas? Thanks for any help you can give.

 

[Msafiri]

Hi everyone, my friend's appeal with IAD has been dismissed. He is wondering how he could "make an application to the Federal Court for judicial review". Can he (outside Canada) or his family member in Canada apply or does it have do be done by a lawyer (he wasn't represented by lawyer in the IAD appeal)? If a lawyer is required, what's the best approach to finding one from overseas? Thanks for any help you can give.

Go the Federal Court of Canada site it has all the information. FC will give leave to appeal only on a point of law so it depends why the appeal was dismissed..also there were some immigration amendments to prevent appeals that needlesly use up/waste the courts time and are a delaying tactic usually for removal from Canada. Is this a residency obligation appeal? What is the shortfall in days? Contact the lawyer who owns the forum - he may be willing to help you out. Another option is to check the FC case law and see lawyers listed as appearing for applicants.

 

[gacr]

Thanks for your quick response. I will check out the FC site. The case is a residency obligation one, and the appeal was purely on H&C grounds (the appellant wasn't contesting the legality of the embassy decision). Will FC grant leave for H&C cases?

 

[gacr]

I just took a look at the FC site. One paragraph stated: "Within 10 days of the issuance of your Notice of Application, you must serve a certified copy of it on the respondent(s) …… Since a Notice of Application is an originating document, you must serve it in person by delivering a certified copy of your Notice of Application to each respondent." Does this "in person" mean physical presence of the overseas appellant in Canada? If yes, can this role be assumed by someone in Canada authorized by the appellant?

 

[Msafiri]

There can be a point of law for H&C too but if the IAD covered the various aspects e.g absence days, ties to Canada, H&C reasons and how compelling these are, scope for return i.e is this an ongoing reason or will it end soon etc as per case law then the FC will deny the application. What many applicants deem compelling can usually be proven to be lifestyle choices...the residency obligation is so weak to start with at 40% (2/5 years) that to breach it you better have compelling grounds that you must pove via documentation.

Your representative can submit the application. Where you are paying the representative then he/she must be authorized to represent you so be in good standing with the lawyer/ immigration consultants organizations.

 

[gacr]

Thanks Msafiri. Regarding this representative who makes the application on behalf of the appellant, can s/he be a relative instead of a lawyer?

 

[Msafiri]

sure but the FC will check the relative hasn't submitted several cases before the IAD which is a sign of a consultant/ business not just someone helping out....FC is no place to cheap out though...most lawyers won't touch a case if they were not involved from day 1 as they may be fixing up your mess...not many want to do that.

 

[gacr]

I'll ask my friend to try to find a lawyer instead. Thanks for your advice.