rosjana16 said:
Of course it all helps! You are a source of great info.
How much did this all cost you to fight, if you don't mind me asking? it may not be worth it in the end.
I am using an Immigration Lawyer to apply for our CEC PR application, and he has stated that he would fight any rejection for us and spoke about setting up a fund, but i just don't know if it will end up just not being worth it financially.
Also, you said you were "granted a leave", what does that mean?
Thanks
My original attorney charged $4k for the FSW application. When I received the fairness letter he basically backed away and I hired a different attorney (one with quite a bit of experience in medical inadmissibility, including successful Judicial Review applications) for an additional $3k (plus expenses) to handle the fairness response. When I decided to challenge the decision in court, the cost was an additional $3200 plus expenses to file the initial application and an additional $1000 when the application for leave was granted.
My second application was self-prepared (sponsored spouse). By that time I had a pretty god idea of what needed to be done.
When you challenge an immigration decision in Court, you are not automatically given a hearing. That is, hearing your case is discretionary - you have to convince a judge that there are issues worthy of the Court's attention. This is known as an "application for leave" - you are requesting the leave of the Court to present your case. The second part is called an "Application for Judicial Review". If Judicial Review is granted it means you've won your case - the Court has reviewed and overturned the original decision.
When you apply for both simultaneously (which is the norm) it is referred to as the "Application for Leave and Judicial Review". It's a formal legal process.
(1) File initial Application for Leave and Judicial Review, usually with a Rule 9 request (this asks for the written reasons for the refusal). This is actually inexpensive - $50. From looking at my electronic case notes, they take these seriously. My notes are very clear that this is a high priority for the CIC office (in my case NYC) to respond ASAP.
Normally, the government files papers denying your application and serving notice as to who will represent CIC (someone from Justice Canada). In rare circumstances, the government might agree, in which case the whole process is fairly quick. I'd be surprised if 0.1% of cases end up this way.
Once the written reasons have been given, you (or your attorney) have 30 days to prepare your legal arguments. At that point you file any affidavits required and a "Memorandum of Law" that basically sets out the case for why the Court should hear your case.
(2) 30 days after your legal arguments are filed, Justice Canada responds to your legal arguments. This is the "Response".
(3) 10 days after Justice Canada files their response, you can respond to their legal arguments. This is the "Reply". At this point you also formally request that your Application for Leave be considered by the Court.
(4) The Court either grants your Application for Leave or denies it. If it is denied, you are done. The Court does not explain why they denied it, they just do. If it is granted, it comes with a
scheduling order. This scheduling order establishes the deadlines for various filings that must be done prior to the oral hearing. The oral hearing must be within 90 days of the Court granting the Application for Leave.
Approximately 20% of Applications for Leave are granted a hearing based upon my informal review. This may have changed as the refugee process has changed (most applications relate to refugee cases).
Those are busy 90 days. Each side files further legal briefs and affidavits. There is an opportunity to cross-examine the parties (so your attorney can question the medical officer and/or immigration officer).
Normally this is straight-forward. In my case it was (literally) a mess, including a motion to amend the scheduling order (I think we threatened to file a motion to strike, but Justice Canada agreed to withdraw some material). The whole thing was surprisingly messy for a process that almost always seems to be rather smooth. The docket for my case is very different than all the cases I have reviewed in the past.
Ultimately, Justice Canada agreed to "see what they could do" to wrap up the second application. It's clear there were a few phone calls placed (5 weeks before the hearing date!) and suddenly my application was reviewed twice: once by an officer that said "it all looks good, but we need to do more work because of this prior refusal" and a few days later by a more senior officer (one that seems to handle complex cases) that said "the prior refusal doesn't apply, everything else is in order, this file is RFV ['ready for visa']". Two weeks later (again, I think it was pushed along by a phone call) LA requested my passport. That same day my attorney filed a notice of discontinuance (which means I dropped the legal action). Two weeks after that I received my passport and COPR back from LA.
Only you can decide if it is worth fighting, but I'd say your odds of success are good - assuming you have the right team representing you.
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