Summary: If your immigration application has been rejected, you may have the option to challenge the refusal in the Federal Court. The type of rejection and whether it can be appealed to the Federal Court or another tribunal depends on the specific circumstances. Some decisions, such as those made on family class sponsorships, can be appealed to the Immigration Appeal Division (IAD), which is a tribunal within the Immigration and Refugee Board. Other decisions, such as those made on tourist visas, work visas, and other permanent residency applications, can only be challenged at the Federal Court of Canada. The time frame for filing a challenge varies based on where the decision was made and ranges from 15 to 60 days. A successful challenge to a decision requires showing that the officer made a misapprehension of the facts, error of law, or committed a breach of natural justice or procedural fairness. To increase your chances of success, it is recommended to retain an immigration lawyer to review the details of the rejection and the strengths and weaknesses of your case.
If your immigration application has been refused you may have the ability to challenge that refusal at the Federal Court.
Look -Don't construe this post as legal advice; there's a lot of nuance here -make sure you contact experienced counsel if your immigration application has been refused.
It is important to understand which decisions are subject to Federal Court challenge and which ones are not.
If the refusal is pursuant to the Family Class, that is you are an eligible sponsor and the person you are sponsoring falls within the Family Class and is not precluded from the Family Class via Regulation 117, then you for the sponsor person may have recourse to the Immigration Appeal Division which is a tribunal within the Immigration Refugee Board (note: if an officer makes a determination that an accompanying dependent is not a dependent, that decision has to be reviewed at the Federal Court). This is a substantive appeal. That means that it is an appeal that is de novo;the IAD is not bound by the decision of the visa officer. Typically appeals to the IAD concern refusals of spouses/common law partners/conjugal partners from overseas or application submitted overseas or refusals of parents/grandparents {example, sponsor does not meet the minimum necessary income or MNI or that there is a concern regarding medical inadmissibility}.
Similarly, individuals can appeal a rejected refugee claim by the RPD to the RAD (certain individuals do not have recourse to the RAD). Refusals of RAD can be JR'd at the Federal Court.
Other refusals - like decisions by officers on TRV, TRP, and other PR applications like refusals of humanitarian and compassionate applications can only be challenged at the Federal Court of Canada.
Timeframes vary if the decision is made inside of Canada, then the deadline for filing the originating document known as an ALJR or Application and Leave and Judicial Review is 15 days; it is 60 days if the decision is made outside of Canada.
You may or may not have detailed reasons and if you do not have detailed reasons, then that is indicated on the ALJR and the court will make a request known as a Rule 9 request and the reasons will be provided; further materials known as the applicant's record is then required (which includes an affidavit containing the relevant facts and exhibits, i.e. the material that was before the decision maker or visa officer along with a memorandum of argument detailing the mistakes or errors committed by the decision maker/officer).
The applicant's record is due within 30 days of the ALJR if reasons have been provided; they are due within 30 days of receipt of the reasons via the Rule 9 request. Federal court time frames are rigid/strict and must be adhered to. Following the filing/serving of the applicants record the Department of Justice, which represents the Minister of Citizenship and Immigration Canada/Minister of Public Safety and Emergency Preparedness can file their materials 30 days after the applicant's record or they may simply consent and indicate their willingness to send the matter back for re-determination by a different officer/decision maker. If they consent, the applicant can then file a notice of discontinuance. If the DOJ chooses to contest then the final say belongs to the applicant, the individual challenging the decision and the reply must be filed within 10 days of the DOJ argument.
Judicial review is not a substantive appeal, it is concerned with whether the officer rendered a reasonable decision. It's largely concerned with the process, not the outcome. Judicial review is sought when there has been a misapprehension of the facts by the officer; the officer makes an error of law or gets a legal test wrong, engages in unsustainable logic or reasoning and/or commits a breach of natural justice or procedural fairness.
Time frames vary between filing the ALJR and resolution. You should also bear in mind that the court decides on which cases it will actually hear in open court. The court can choose not to hear the matter and dismiss it summarily after receipt of materials by both parties -this is called the "leave" requirement. If leave is granted then a hearing date will be set down; between ALJR and a hearing date, it could take between six to 10 months. If the ALJR and applicant's record is provided and the DOJ consents then the matter could be sent back for re-determination in as little as three to four months.
It is difficult to give an opinion as to the strengths or weaknesses of a case without reviewing the officer's detailed reasons. Again, this is more than just the refusal letter, this usually means the GCMS or Global Case Management System notes for a decision made by officer outside of Canada. It is important to review this and determine whether there is a reviewable error or breach of natural justice or failure to comply with the rules of procedural fairness.
If you are in this predicament, I would strongly suggest contacting and consulting with an immigration lawyer (immigration consultants cannot appear before the Federal Court). To a large extent, the strength of a JR depends on the strength of the underlying application so I would suggest that you retain experienced counsel to minimize refusal and even if the application is refused, to maximize chances at JR.
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