Immigration Canada - What do you do after you have been denied

[sangria]

This thread is intended to provide/share information for those who have been denied Permanent Residence Status by Immigration Canada and to help them choose the best path to take in contining the process to be reunited with their spouses.


This thread is open to:

- Questions/Answers regarding the steps required to reapply or appeal Immigration Canada's decision on you/your spouses PR visa application.

- Sharing your personal experience throughout the appeal process.


**Note**
Any personal attacks against Immigration Canada, their interviewing officers or discussing personal reasons for denial will be deleted.

[sangria]

Appeal Lingo

IAD - Immigration Appeal Division
ADR - Alternative Dispute Resolution

Once you have been denied the visa office must...

- notify the sponsor of their right to appeal
- provide a copy of the refusal letter sent to the applicant
- include all immigration file numbers for reference
- provide the instructions/form for starting the appeal process - appendix B (see link below)


Notifying IAD that you want to Appeal
- Form must be sent to the IAD Registry Office within 30 days of receiving your refusal letter
- You must include a copy of your refusal letter when you send in the notice of appeal form
- If you choose to use a lawyer or consultant, you must advise the IAD in writing with your representative's information, address, phone number etc.

Page 56-61 of the following link lists more information on the beginning of the process & the address of the IAD Registry Office in your province.

http://www.cic.gc.ca/english/resourc...p/op02-eng.pdf

Once the IAD has your request to appeal
- They will determine if you are approved to appeal
- The full visa file including CAIPS notes will be sent to you or your representative within 120 days.
- If you are approved to continue the appeal, you will likely be scheduled for an ADR hearing

ADR Hearing

An ADR hearing is an opportunity for the sponsor, a representative from CIC and an impartial mediator to meet.

The CIC representative will interview the sponsor, review additional evidence provided to them prior to the hearing date and possibly overturn the previous decision.

**If your refusal letter outlines that your spouse was denied because they didn't know enough about you then the likelyhood of the results being changed are very slim. They will likely reccommend waiting for the final step which is a full court hearing.

Full Court Hearing

Full court hearing is in front of a judge with you being represented by a lawyer and your spouse being teleconferenced in (also represented by a lawyer) and RE-Interviewed.

At this point, the judge would make a decision to approve or deny the request for the visa.

If it is approved, the file is sent back to PAP for further processing.


Should you use a Lawyer or Immigration Consultant?

During the initial stages of the appeal process including the ADR hearing, representation is not required but may be very helpful.

A lawyer or consultant will not be able to help you or say anything during the ADR hearing.

Lawyers/Consultants will have the necessary knowledge to help you through this part, coach you in advance of what will happen, prepare & submit additional evidence to support your case etc.

If the process continued to a full court hearing, legal representation would be required.


How long will this process take?

Going through the appeal process can take a long time. It can be close to a year before you attend an ADR hearing and another 1-2 years to have completed the full court hearing.


More info on the appeal process can be found here...

Links:

http://www.cic.gc.ca/english/resourc.../enf19-eng.pdf

http://www.irb-cisr.gc.ca/eng/brdcom.../marriage.aspx

[twillis]

Hope I never need it but thanks for all your work Sangria. You are always so helpful.

[Jess1]

I agree with Twillis's post 100%!

[El_Uruguayo]

Actually Sangria,

I'm pretty sure that the IAD applies to cases within Canada. Overseas cases generally have to make an Application for Leave and Judicial Review (ALJR) to the Federal Court. The purpose of the Federal Court is to oversee government actions, procedures etc, as it the the ministry itself cannot exactly police itself. A visa officer is essentially a Minister's Delegate - they can make decisions on behalf of the Minister. Anyhow, there are a number of reasons as to why one can appeal, ranging from Error in Law, Error in Fact, applied the wrong test, Lack of Natural Justice (procedural fairness), etc.

The process is as such. An overseas case has 60 days from the date of the decision (or the date the decision was recieved) to file an ALJR. The application basically states that the tribunal (visa officer) erred in that they did not act accordingly to law, made an error, did not take into account all the evidence before them, etc. It also seeks remedies, which would most commonly be a redermination by a different officer, or in some cases a direction that the visa officer complete the assesment of the file(in cases that files take forever), or in rare circumstances it can be an order with directiones (i.e. redertimine the file, with a positive outcome). Costs are very rarely awarded.

So timelines. ALJR filed in federal court. After that date, the applicant (person) and respondent (Minister of CIC) have 30 days to file their factums and affidavits. Then there is some time to review each others affidavits etc (within this time the applicant should recieve written reasons for the decision - this is not the refusal letter, but rather the caips notes). Then it goes before the judge - there is no cross examination with the applicant or anything, its just the counsel. If the judge finds that there are grounds, leave is granted - then the trial starts, and there is some more time granted to prepare. If it is dismissed, there is no appeal.

So once leave is granted, there is some more time given to each side to prepare - i think it is 90 days, and a court date is set. These trials are expedious, ranging from 2-3hrs max, or in rare cases with large files a couple of days to a week. When all is said and done, the judge can issue a judgement and order. Start to finish, you're looking at a minimum of 6 months.

In some cases, at the early stages the government will consent if there is some obvious grounds to do so - if not they will let it go to trial.

What is key to understanding if a case has a chance are the standards of review which are reasonablness and corectness. Corectness is applied to law - if a law is not applied as it is supposed to, it is not correct, judicial review will be granted. As for reasonableness its more subjective and open to a bit of interpretation and discretion, however there are some key factors which might let one know if they have a chance - for this you need the caips notes.

Top on the list would be if the officer writes about concerns in the CAIPS notes, but does not give an opportunity for the applicant to respond - it is a breach of Natural Justice. An officer may apply the wrong test, i.e. states that the sponsored person does not have a job lined up in canada, therefor refused - the person having a job or not is irrelevant, therefor it is a breach of Natural Justice.

There are many things that can be picked at from the notes, but what is important that the entire case be strong. If there are several factors pointing towards a refusal and you find grounds to reverse part of that, it won't necessarily change the outcome.

Basically if you can prove any of the following, you have a case:

(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.

Anyhow I'll leave it at that for now.

[El_Uruguayo]

Ok, So in retrospect, you are right. Appeal can be filed with the IAD, if that fails, then you can take the IAD decision to Federal Court. I'm not sure which is quicker, but perhaps IAD is a surer route in that it you have further recourse should it be denied.

Canadian Immigration Refused | Visa Application Denied | How to Appeal Refused Immigration

Canadian Immigration Appeals - Matthew Jeffery, Toronto ON

[sangria]

Thanks El_Uruguayo

Dominican_Daisy, one of our posters went through the process as I listed it.

She had to request the appeal, submit additional evidence, was sent to the ADR hearing, next step court date set.

She opted at that point to withdraw her appeal and reapply.

All other information was taken directly from the CIC operating manuals with links provided.

I know for some types of visas, ADR hearings are waived and go directly to court (ex. common law cases). I'm not sure why this is.

Hopefully DD will write to share her experience and her path through the appeal.

[sangria]

Taken from the link El_Uruguayo posted - Immigration Matthew Jeffreys

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.

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.

I think this sums up the general process of appealing within the family class.

[AnnaC]

I'm a little confused on one point. I like taking the info straight from the CIC website.

On this page,

http://www.irb-cisr.gc.ca/eng/brdcom.../marriage.aspx

under ;

PREPARING FOR YOUR APPEAL
You should come prepared to deal with all of the reasons the visa officer gave for refusing your spouse's application. But the Minister's counsel or the IAD Member may also ask you questions about anything dealing with your marriage and your relationship with your spouse.
It is important to know that for sponsorship appeals of marriage cases, the IAD Member can only decide if the refusal is legal. The Member is not allowed to consider whether there are humanitarian and compassionate reasons for allowing your appeal.

[coco55]

I would like to know if we can have back all the documents we sent to hait if we arent going to appeal? Is ti the only way for us to get back all the evidences^