By Catherine Sas, K.C.
and Digvijay Chauhan, Articled Student
Special to The Post

It is a fact of immigration practice that not all applications are approved. When your application is refused, what can you do? There are several options for dealing with a refusal. Let’s review the steps that you can take.

GET THE REASONS FOR THE DECISION

Most refusal letters are merely letters advising that your application has been refused. It conveys the decision but generally does not provide the reasons for the decision. The detailed reasons of the officer are captured in computerized notes in the government’s Global Case Management System (GCMS). It is a good starting point to obtain the GCMS notes to learn what the officer’s concerns were in refusing the application. There are two ways to obtain the GCMS notes - an Access to Information request (ATIP) or a Judicial Review (JR) application in the Federal Court.

An ATIP request is an application to obtain information from the government. It can be to obtain an entire application with copies of all the documents or merely the GCMS notes. The cost for this process is only $5 but the processing times to obtain the reasons are lengthy and can take several months. This is not a good option where there is urgency.

A JR application is filed with the Federal Court. When reasons are NOT provided with the decision, which is usually the case, you can stipulate this in your application for JR and then the Court obtains the reasons from the government department involved. Generally, the reasons are provided by the Court Registry within a matter of weeks. While this is a faster option, it is also a more expensive option as you will likely need to retain the services of a lawyer to file the application with the Federal Court. In our immigration law firm we frequently file such applications in order to obtain the reasons for the refusal in a speedier manner. Once we have the reasons for the officer’s decision, we can decide whether to continue with the court application or submit another immigration application.

FILE ANOTHER APPLICATION

As the saying goes “if at first you don’t succeed, try, try again!” Once you can understand why an officer refused your application, you can address and remedy those concerns in a further application. It is often faster and cheaper to submit another application with additional or different supporting evidence. We have had several situations in our office where an initial application has been refused - whether prepared by applicants on their own or by the lawyers in our office - but when a further application is submitted, it is approved. Trying again can often be the best course of action once you can understand why the application was refused in the first place.

PROCEED WITH THE JUDICIAL REVIEW APPLICATION

Sometimes the circumstances merit going the distance with a JR application at the Federal Court. However, as mentioned above, it is advisable to retain the services of a lawyer. Though you can represent yourself in Federal Court, it is usually recommended that you hire the services of a lawyer who can advise you on the court process and timelines and on the relative strengths and weaknesses of your case.

What is Judicial Review? It is pretty much the way it sounds - a Judge at the Federal Court “reviews” the decision to see whether it was properly made in accordance with the law and the facts. It is NOT an appeal. The Judge can only review the decision and set it aside for re-determination, but can not substitute their own decision over that of the immigration officer. When a decision is set aside, it is sent back to the immigration department for re-determination by a different officer. You are also given the opportunity to provide updated evidence in support of the application.

A JR application takes several months. Firstly, the immigration applicant or their lawyer must file an Application for Leave and Judicial Review. In immigration applications, the Court must first give “leave” - which is permission - before the case can be argued in the Federal Court. After filing the initial application, there is a 30-day period to provide the evidence and arguments as to why you are seeking a review of the decision which is called the Applicant’s Record. Following the filing of the Applicant’s Record the Department of Justice has 30 days to file the Respondent’s arguments. Then there is a further 10 days for reply by the Applicant. The Court then reviews these written arguments to decide whether to grant leave (permission) for the case to be scheduled and argued before the Court. If the leave application is granted, the Court will set specific time periods for all the stages of the litigation process including the actual hearing date. From the commencement of the application to the hearing of the case in court usually takes six to seven months.

No one likes receiving a refusal of an immigration application. However, there are options to achieve success in the future. Understanding what steps can be taken to remedy a refusal is helpful in determining the best course of action for a positive outcome in pursuing your immigration goals.

Catherine Sas, K.C. has over 30 years of legal experience. She provides a full range of immigration services and is a leading immigration practitioner (Lexpert, Who’s Who Legal, Best Lawyers in Canada). Go to canadian-visa-lawyer.com or email [email protected].