[Explainer 3]: The Immigration Next Step Series
Have You been Denied a Visitor visa/Study Permit, and You are Wondering what to do? Here are the next steps:
Most applicants for a visitor visa or a study permit to Canada may not have realized that the issuance of a visa by Canadian visa officers is, by design, an exercise in administrative discretion. This means that the visa officer who is assigned to process an applicant’s file is required by law to subjectively assessed the application and make a determination.
Typically, applications for a temporary resident visa (visitor visa, study permit and work permit) are assessed based on non-exhaustive factors such as the existence of a verifiable basis for the application, the likelihood that the applicant will return to his or her country of habitual residence, financial factors etc.
Even when an applicant has provided relevant information and supporting documents, it is not uncommon for visa officers to routinely refuse to grant the visa applied for. Most failed visa applicants usually lose interest in coming to Canada or simply submit a new application. Many failed visa applicants are known to have submitted multiple successive yet unsuccessful applications.
This piece focuses on the next steps that an applicant whose application for a visa has been refused should consider without delay.
1. Establish the Visa Office that Processed your Application: It is generally easy to find out the visa office that processed an application that was submitted for a visa. The decision letter usually indicates the visa office. The name of the visa officer will not be disclosed, except for his or her initial but the visa office will be disclosed. Knowing the visa office is important because the location of the visa officer who processed the application determines the length of time within which a failed visa applicant has to challenge the decision.
2. Determine how to Respond: An applicant whose application for a visa has been refused has two options: file a judicial review at the Federal Court or submit a new application for a visa.
Most applicants erroneously think that they have a right of appeal when their visa applications are refused. This is not the case. Canada’s Immigration and Refugee Protection Act (IRPA) does not give a right of appeal to applicants for a visa. Generally, under Canadian law, the right to appeal a decision is statutorily conferred. It does not arise from common law. The right to seek a judicial review of the decision by a visa officer is guaranteed by the IRPA, and a failed visa applicant has that right. This is not the same thing as an appeal.
An applicant has to immediately decide if he or she wants to commence the judicial review process or if he or she wants to submit a new application.
3. Judicial Review: In order for a failed visa applicant approaches the court to challenge the decision of a visa officer, he or she must file an application for judicial review. This means that the failed visa applicant wants the court to review the decision that was made by the visa officer so as to determine whether the decision met the standard set by the law on administrative decision-making in Canada. The judicial review application is a two-step process. It is advisable to retain a competent lawyer to facilitate the application. Upon a competent lawyer reviewing your application and the reason(s) for the refusal, he or she would be able to advise you on the better option to choose. The judicial review option is better suited to a case in which the visa officer has made a clear and obvious error which can either be of fact or of law.
4. Know the Limitation Periods: If a refusal decision was made by a visa officer who is located outside Canada, the law provides that the failed visa applicant must file his or her application for judicial review within sixty (60) days of receiving the decision. However, a failed visa applicant whose application was processed by a visa officer who is located in a visa office in Canada must commence the judicial review process within fifteen (15) days of receiving the refusal decision. It is important that a failed visa applicant reaches out to a competent lawyer as soon as he or she receives the refusal letter.
5. Retain a Competent Lawyer: Many applicants consider the process of submitting an application for a visa to be a complex process. However, the process of filing a judicial reviewing application at the Federal Court is even more complex and technical. It is fair to say that the process is designed for lawyers, and not for non-lawyers. This is not to say that non-lawyers who have the knowledge cannot prepare and file a judicial review application themselves, but it is important to remember that the opposing party, who is Canada’s immigration minister, will be represented by a government lawyer. It is not advisable for a failed visa applicant, regardless of his or her level of intelligence, to engage a highly trained government lawyer at the Federal Court where the rules of evidence and the technicality of the law are applied notwithstanding the status of the applicant.
A competent lawyer will know the decided cases and the legal principles that apply to your circumstances, and he or she will know how to argue your case before the Federal Court. There are many ways to make a successful argument in your case.
6. Gather your Application Forms and Supporting Documents: Many applicants do not retain copies of the forms and supporting documents that they provided to the visa office. It is a good practice to retain a copy for your records. The lawyer who will assist you to file a judicial review application will need a copy of your application forms and supporting documents.
This is not legal advice. Please contact my office in order to obtain legal advice that is specific to your circumstances.
Barrister & Solicitor
Andrew Law Office
P: (587) 938-1577; F: (780) 705-2135