God Forbid ,If you get a letter in the mail from Canada Immigration advising you that your application for Canadian immigration was refused, do not panic! You have options.
You may be eligible to Appeal your Canadian Immigration Application Refusal to the Federal Court of Canada within a certain period after you were notified of the refusal by Canada Immigration.
You may be eligible to Appeal your Canadian Immigration Application Refusal to the Immigration Adjudication Division (IAD) within a certain period of after your application was refused by Canada Immigration.
You may be able to make a request for Restoration to the Case Processing Centre (CPC) after being notified if the refusal.
Which option is right for you:
It depends on a number of factors such as the nature of the case. Is it a Skilled Worker Application, Canadian Sponsorship Application or Canadian Work Visa refusal?
And it also depends on where the Canadian immigration application was filed and processed. Was your Canadian immigration application filed within Canada or at a Canadian Consulate or Embassy outside of Canada?
Why did my Canadian Immigration Application get Refused?
Generally refusals for Canadian immigration applications do not just happen. When applications for Canadian immigration are submitted to Canada immigration, an immigration officer is responsible for reviewing the application and making an assessment about whether the application should be approved or denied. The immigration officer has guidelines for making decisions on immigration cases. These guidelines are found in the Immigration Regulations as well as Immigration Manuals.
When applications do not meet the various standards and criteria set out in the Immigration Regulations and Manuals, then the likely result is a refusal. However, in many cases, Canadian immigration officers make mistakes in their decisions. They often are too strict in their interpretation of the guidelines or they simply fail to review all the documentation and information in an application. Sometimes applicants are called for a personal interview and the immigration officer does not believe the applicant is credible or trustworthy.
Whatever the reason for the refusal, it is important to act very quickly once you are notified that your case was denied. You should then seek out a qualified and experienced Canadian immigration lawyer who is licensed. If your case has merit, then an Immigration Appeal should be considere
Canadian Immigration Application Refusal
It can be devastating to learn that your application to reside in Canada has been refused.
Fortunately, you may have recourse. A Canada immigration officer's decision to refuse an application may be challenged if that decision was wrong in fact or in law, or if that decision is not in accordance with the principles of procedural fairness.
Family Class sponsors have an additional recourse. They can ask that a refusal be reversed by raising humanitarian and compassionate considerations.
You may retain our law firm to provide you with a detailed analysis of the refusal decision. We will also advise you as to which remedies may be available to reverse the refusal decision.
If warranted in your particular situation, we can do the following:
Reconsideration letters– If the refusal was based on an error in fact or in law, and/or if that decision was not in accordance with the principles of procedural fairness, write to the Program Manager of the Canadian Visa Office to point out the errors and to request a reconsideration of the refusal decision;
Appeal – Wrongful refusals may, in certain instances, be appealed to the Federal Court of Canada or to the appropriate provincial court or, in the case of family sponsorships, to the Immigration Appeal Division.http://www.canadavisa.com/canadian-immigration-application-refusal.html
APPEAL OPTIONS (CANADIAN IMMIGRATION)
The formal place that immigration appeals are made is the Federal Court of Canada. Most people choose to be represented by a lawyer at Federal Court.
The Federal Court is a court that has judges who are lawyers. Federal Court is strict, formal and has more complicated procedures. Federal Court involves a two step process. The first step is to file an appeal to get leave which is done by arguing your case by filing documents with no actual appearance at the Federal Court. In order to get leave to appeal you must prove there was a serious mistake made by the visa officer at the interview. If you succeed and get leave, you get the permission of the Federal court to go to step two which is the actual appearance at Federal Court in person to argue the case.
A typical case would be a skilled worker or business (investor, entrepreneur, self-employed) immigration applicant who goes to the interview at the Canadian Consulate or Embassy overseas, meets with a visa officer and fails the interview. The visa officer will issue a rejection letter setting out the reasons for the rejection. The applicant has a limited number of days (60) to respond and file a notice to commence a court action to appeal the case. If you miss the deadline generally you are not able to file an appeal. There are certain special circumstances and legal arguments that can be made that will allow you to continue even if you miss the deadline.
The general procedure for a Federal Court appeal is after the applicant files the Notice to start the action, the Respondent who is Citizenship and Immigration Canada (“CIC”) files an appearance confirming they will oppose the appeal. The applicant receives a copy of the visa officer's files containing documents filed and most importantly a copy of the interview notes made by the visa officer that have been inputted into the government computer. After a review of this material the applicant will file an applicant's court record containing the written argument, photocopies of legal cases and law supporting the argument and the applicant's affidavit that is a written document telling the applicant's story.
The respondent CIC is represented by the Department of Justice (“DOJ”) and they file their argument. The applicant has a chance to respond to the points made by the respondent in the respondent's argument.
If leave is granted the Applicant gets to go to Federal Court to actually argue the case in person. This usually takes approximately 12-18 months from the date of commencing to appeal to get to Federal Court to argue the case in person. If no leave is granted the appeal is ended.
If you fail at Federal Court, you can also appeal to Federal Court of Appeal. If you fail at Federal Court of Appeal, you can also appeal to the Supreme Court of Canada. For both Federal Court of Appeal and Supreme Court of Canada you first must get leave to appeal.
Canada Immigration Appeals
Any type of refusal by the immigration authorities may be appealed in court in Canada. These appeals will be made either to the Federal Court of Canada, or in certain types of cases, to the Immigration Appeal Division.
Canada Immigration Appeal to the Federal Court
Any immigration decision may be challenged by way of Judicial Review in the Federal Court of Canada. As examples, a decision made by an immigration officer overseas to refuse a visa application, or a decision of the Immigration and Refugee Board to refuse a refugee claim, are both reviewable administrative decisions. This means the Court can review the decision to decide whether it was lawfully made. Issues the Court will consider include whether the decision-maker acted within jurisdiction, whether the decision was fairly made, and whether the decision was reasonable in light of the evidence. It is not necessary for the applicant to appear before the Court in person, the case can be managed entirely by an immigration lawyer including any appearances at the Court.
If the Court decides the decision was not properly made, the case will be sent back to be re-decided by a different decision-maker. This type of appeal to the Court must be made within 15 days of a refusal made in Canada, or 60 days of a refusal made outside Canada, so it is important to act promptly to preserve your appeal rights.
Appeals to the Immigration Appeal Division
In certain types of immigration cases a negative decision can be appealed to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board, which is a Canadian administrative tribunal. Usually an appeal must be made within 30 days of the negative decision so in these situations it is important to act quickly in order to preserve your appeal rights. The types of cases which can be appealed to the IAD include:
Appeals by Sponsors: In situations where a Canadian citizen or permanent resident has attempted to sponsor a family member and the application was rejected by the Immigration authorities, an appeal may be made within 30 days of receipt of the refusal letter.
Appeals by Permanent Residents: In situations where a permanent resident or a person holding a permanent resident visa has been found to be inadmissible and is ordered removed from Canada, an appeal may be made within 30 days of receipt of the refusal letter.
Appeals by Refugees: In situations where a person who has been granted refugee protection has been found to be inadmissible and is ordered removed from Canada, an appeal may be made within 30 days.
Residency Appeals: In a situation where a permanent resident who is outside Canada is determined not to have fulfilled the residency requirement, an appeal can be made within 60 days of the decision.
Persons who appeal to the Immigration Appeal Division will be permitted to present new evidence in support of their case and may personally testify before a Board Member. The IAD will consider whether the negative decision was legally made, and may also consider Humanitarian and Compassionate factors related to the case. If the IAD decides the decision was wrongly made, or there exist compelling Humanitarian and Compassionate factors, it will overturn the original decision and send the case back to be re-decided in accordance with its findings. If the IAD dismisses the appeal, a further appeal of the IAD's decision may be made to the Federal Court.