After months of hard work and sometimes years of waiting patiently for an application to be finalized, nothing could be more heartbreaking than to receive a refusal. Suddenly, all of one’s hopes and dreams of coming to Canada or of being reunited with a loved one seem to be dissolve before one’s very own eyes. But despite the initial shock of a negative decision, there are number of legal options that an experienced immigration practitioner can pursue to turn a refusal into a positive decision. The key is to act fast.

Not every case has the merits of being appealed

Sometimes a refusal does not warrant an appeal. Instead, in certain cases it is advisable to simply reapply again under the same program. For example, an applicant under a Skilled Worker application who scored very little on an English proficiency exam, resulting in a final assessment well below the required 67 points would not make a good case for filing a Judicial Review to Federal Court, as it cannot be said that the visa officer erred in fact or in law. On the other hand, an applicant whose final score was 66 points might have a strong case, arguing that the visa officer failed to properly consider using their discretion to award the missing point. If a visa officer makes an outright mistake in fact, policy or law, fetters their discretion or behaves unreasonably during a personal interview, an appeal may be advisable.

Appeal avenues:

Presently, there are two legal avenues to pursue an appeal: The Immigration Appeal Division (IAD) and the Federal Court of Canada.

Immigration Appeal Division

Canadian immigration law allows certain types of applications to be appealed at the IAD. These include Canadian sponsors whose applications to bring family members to Canada have been refused, appeals of removal orders made against permanent residents, refugees and protected persons, and appeals from permanent residents outside of Canada who have been found not to have met their residency obligations.

Federal Court of Canada

When there is no statutory right of appeal, applications that have been refused (such as Skilled Worker applications) can be reviewed at the Federal Court level through an application for Judicial Review. Unfavorable decisions by the IAD can also be submitted to Federal Court for a Judicial Review.

Procedures:

It is important to note that the IAD and Federal Court operate on very different set of rules, each with their own filing deadlines and procedures. Generally, IAD appeals must be filed within thirty or sixty days, depending on the matter, and Federal Court appeals must be filed within fifteen or sixty days after the applicant receives a refusal.

For this reason, if you receive a refusal on any immigration application, we suggest you immediately contact one of our experienced lawyers to be advised on the following issues:

• Does the refusal merit the costs and expenses of an appeal or is re-submitting a better strategy? In other words, is it essential to file an appeal? In many cases the answer is yes!
• What is the right institution to fight the refusal?
• What is the deadline to file an appeal or judicial review?
• What are the procedural steps to follow?
• What is the timeline of the appeal process?
• What happens after an appeal is won?

Remember, waiting to contact an immigration practitioner after receiving a refusal can be a costly mistake in light of the strict filing deadlines. If you have an application that has been refused or have been ordered to leave Canada, always keep in mind that in most cases legal options exist that can resolve your immigration matters, no matter how daunting they may seem.

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