[Explainer 5]: What to do When Your Visa Application is Refused
According to anecdotal statistics, more visa applications are refused than are granted. This is usually because of several factors. This piece will not examine the reasons for refusal or denial but seeks to proffer approaches to handling a negative outcome on a visa application.
The pointers discussed in this piece specifically relate to the Canadian immigration system and to those persons who have applied for a visa to come to Canada.
Some aspects of this article may be useful to applicants for visa to other countries, but direct application of the suggested approaches is not encouraged.
If you or someone you know has received a negative decision on your visa application, there are few options to explore. You could (a) re-apply, (b) do nothing and simply abandon your goal of coming to Canada, or (c) challenge the decision.
Most people erroneously choose to re-apply when they should instead challenge the refusal decision. In many cases, mounting a challenge to the refusal decision may be a better choice than re-applying. Being human beings, visa officers sometimes make decisions that are not supportable by the facts contained in the General Case Management System (GCMS) notes. If you choose to challenge the refusal decision, these steps will come handy.
1. Find Out Why You have been Refused
Immigration, Refugees, and Citizenship Canada (IRCC) will have sent you a two-page letter by which you were informed of the refusal of your application. I call this the “refusal letter”. This letter is a “template” letter. This means that it has been pre-formatted to tell you very general reasons why your application may have been refused. Think of the letter as a “check-box” letter without actual checkboxes.
Many of the “reasons” given in the refusal letter may not pertain to your application. You, therefore, have a refusal letter that does not actually disclose the real reason(s) your application has been refused. The only way to find out why you have been refused is by applying for, and obtaining the GCMS notes that the visa officer must have taken down while assessing your application. It has since been established, through case law, that the IRCC owes applicants a duty to document the steps taken to assess visa applications. The IRCC uses the GCMS as its file management system.
An applicant is entitled to a copy of the GCMS notes by paying an application fee. The applicable law in Canada – the Access to Information Act – mandates IRCC to release the GCMS notes to you within 30 days of receiving an application for disclosure. The law also permits time extensions for upwards of 30 days.
2. Carefully Review the GCMS Notes
If you have not retained a lawyer to facilitate your visa application, you may want to reach out to a lawyer like me to assist you in reviewing the notes. Depending on your history with IRCC, your GCMS notes could be several pages long. Most of the information contained in it may not be relevant to the refusal decision, but a trained mind like mine can connect the minutest information to the reason for refusal.
What you want is to look for information in the notes that you can base a judicial challenge of the refusal on. Regardless of your education and exposure, only a lawyer who is experienced in immigration law can pick the notes apart with a view to coming up with a triable cause of action. This is the realm of administrative law and its intersection with immigration law. It is not a matter that you should entrust to beginner-lawyers or immigration consultants/agents.
3. Determine Whether to Challenge the Refusal Decision
This is a crucial decision to make. Determining whether to challenge the refusal decision requires the combined knowledge of the rules of judicial review (through case law), the theories of natural justice, and the procedural rules of the Federal Court of Canada.
You are better equipped for the challenge if you retain an experienced lawyer at this juncture. This is because the GCMS notes may not have disclosed any real reasons to request for a judicial review of the refusal decision. Filing an application for leave and for judicial review requires you to outline the reason(s) why you are challenging the decision. It is not as simple as writing, “I think that I deserve a visa” or that “It is unfair to deny me a visa since I provided several documents in support of my application”.
4. Prepare an Application for Judicial Review
If you have determined that a challenge should be mounted against the refusal decision, you must immediately prepare your application for judicial review. Only the Federal Court of Canada has jurisdiction to entertain a case against the IRCC since it is a federal agency. The Federal Court has its own procedural rules for immigration-related judicial review applications. The rules determine the timelines for filing the application. As it is with most court applications, you will need a knowledgeable lawyer to assist you. Contact us for legal advice that is particularized to your circumstances.
This is not legal advice. If you are looking for legal advice or an informed second opinion on your matter, please contact me through any of the contact details below:
Barrister & Solicitor