Alternate Dispute Resolution (ADR) at the Immigration Appeal Division (IAD)

Alternate Dispute Resolution (ADR) is an opportunity to resolve an appeal before the Immigration Appeal Division ("IAD") early and informally, without needing to have a full hearing. Not all appeals are well suited to ADRs and the Minister’s Representative must be willing to participate in the process for it to succeed.

Some information about the IAD is useful to know to understand when ADR might be a good option on a file. The IAD has jurisdiction to hear appeals in the following types of cases:

• Sponsorship appeals

  • spousal sponsorships, which are usually refused on grounds of genuineness and primary purpose;

  • parental sponsorships, where the grounds of refusal are usually the sponsor’s failure to meet the Minimum Necessary Income (MNI) or due to medical inadmissibility

• Removal Order appeals

  • for permanent residents who are facing removals for residency obligation, misrepresentation and some criminal inadmissibility cases

The IAD has humanitarian and compassionate (H&C) jurisdiction, which means that they can allow an appeal even if the basis of the underlying refusal/removal order is established in law, if they believe that sufficient H&Cs exist to warrant doing so.

An appeal to the IAD must be started within the prescribed time limits (30 days for most matters). Once that is done, the IAD will request IRCC to produce a full copy of their file, which is called the Certified Tribunal Record ("CTR"). IRCC has 120 days to produce the CTR. Once that happens, the IAD will review the type of file and determine whether it may be possible to resolve at an ADR. If so, the IAD will contact the parties (or their lawyer) to advise them and to schedule an ADR.

An ADR is confidential, which means that anything said at the meeting cannot be used later on at a full hearing, should that be necessary. This provides a great opportunity for Appellants to try to resolve the matter early, and even if the ADR is unsuccessful, they have at least had some exposure to being questioned. It’s like a ‘practice run’ before a full hearing. It can also be instructive to the representative because there might be facts or issues that come about at an ADR that we did not previously anticipate. Ultimately, there is no downside for an Appellant to attend an ADR. If it is unsuccessful, then the IAD will schedule the matter for a full hearing in the normal course.

The Appellant must produce disclosure for the ADR much like they would for a full hearing. If the Appellant consents, that material can be provided as is to the IAD board member for the full hearing.

One of the main differences between an ADR and a full hearing is the decision-maker. At a full hearing, the Minister’s Representative is one of the parties, but ultimately the decision to allow or dismiss the appeal lies with the Member (like a judge). An ADR is an informal meeting of the parties. There is no Member. Rather, the process is presided over by an Early Resolution Officer (ERO), whose role is to facilitate the process and try to encourage the Minister’s Representative to consent to the appeal in appropriate cases. Ultimately, the decision to consent (or not) at an ADR is made by the Minister’s Representative.

Another difference is the role that we as the Appellant’s counsel play. At an ADR, our role is very limited, and largely limited to observing. We may be called upon to point out certain documents in evidence. We play a facilitative role, but ultimately it is the Minister’s Representative who asks all the questions. At a full hearing, the Appellant’s lawyer is the primary questioner, followed by the Minister’s Representative.

Finally, there are seldom witnesses at an ADR. The Applicant(s) is(are) the usually the only ones that the Minister will speak with. This means that appeals that require hearing from the applicant(s) are often not ones that are suited for ADRs. This is why spousal sponsorship applications seldom go to ADR because the motives of the applicant overseas is critical to knowing whether a marriage is genuine.

At the end of the day, a successful outcome at ADR has the same impact as succeeding at a fulsome hearing. It means that the underling decision is overturned (or the removal order is done away with), and a new decision must be made at the Visa Office. The underlying decision-maker cannot revisit the same issues that the IAD appeal was based on. Often times, this leaves the Visa Office to only assess admissibility (medicals, criminality, security) and not eligibility.

If you require assistance with a matter before the IAD, whether it be for an ADR or otherwise, please contact us.