Canada Visa Refusal – The Process of Judicial Review
Has your application for immigration been turned down? You may be able to appeal in the Canadian Federal court if your application for a visitor visa, study or work permit, H&C, or permanent residency is denied. Before you spend all that time and money on a lawyer, you should try to understand how everything works. We’re going to go over this whole process quickly today.
Prepare for a Judicial Review
Opening a Federal Court case to request the written refusal reasons is the first step in preparing for a judicial review, which comes before an appeal. The total cost of getting the written reasons, including legal fees and disbursements, can range from $750 to $1000 Canadian dollars, including the $50 Federal Court judicial stamp.
After receiving the reasons, you can decide to continue litigation or court proceedings. If the written reasons indicate that the case will likely fail in Federal Court, your representative should advise you to file a Notice of Discontinuance at no cost. Many cases are dropped at this stage because the “reasons” do not show a reasonable case, or your chances of success are too low to make the process feasible. You’re wasting money.
Your representative will argue that Federal Court should continue litigation if the written reasons justify it. From the time you decide to continue litigation to the end, your lawyer or legal representative will charge $4,500 to $6,500, including taxes.
Judicial Review Processing Time
How long it takes to process a case depends on how strong it is. If it is very strong, the Department of Justice usually settles the case in about two months, before it even goes to court. The visa office then needs time to get in touch with the person and have them update their file.
There is no set amount of time. It could be between 3 and 9 months, and sometimes even longer. There have been times when this happened in less than 3 months, and there have also been times when it took longer than 6 months, or even close to a year. It will depend on many things. For example, if you are dealing with the Canadian embassy in Poland, they can drag it out for 12 to 24 months.
Canada Visa Refusal – Difference between Judicial Review and Appeal
With the judicial review process, it is usually hard to overturn an immigration officer’s decision in Federal Court. This is because this process is a “judicial review,” not an “appeal.”
In an “appeal,” it’s enough that the judge doesn’t agree with the immigration officer’s decision. In “judicial review,” even if the judge disagrees with the immigration officer’s decision, that isn’t enough to change it. There has to be more than just disagreeing with the result on its own terms. You really only have a chance if there was a “mistake of law.”
Canada Visa Rejection: How the Federal court works
You have 60 days to start the process after receiving a refusal letter from another country. After the case is heard, the Respondent, the immigration officer, must explain why it should be heard. Written reasons can take weeks.
The applicant has 30 days to submit affidavit evidence and written argumentation after receiving written reasons. Remember that in 99% of cases, only the original application and all subsequent correspondence with IRCC can be used, so you need a solid application from the start.
Then, the Respondent—the IRCC—has 30 days to submit their Affidavit evidence and written argumentation to the Court. After reviewing the evidence, the Respondent may settle. The Respondent, IRCC, would send a letter stating that a “Notice of Discontinuance” will cancel the refusal, reopening the case and continuing processing. It’s everywhere post-COVID.
If there is no settlement offer, the Applicant has ten days to file a “Reply” to address the new points after the Respondent (IRCC) submits their Affidavit evidence and written argumentation to the Court (The Respondent’s Memorandum of Fact and Law).
A Federal Court Justice decides whether to hear the case after receiving everything. Court decisions may take weeks or months. Months of similar cases.
When Court decides to take the case,
“Granting leave” means that the case will be heard, usually within the next three to four months.
When Court rejects the case
The matter ends there. The Court dismisses the case without explanation. You must understand that if the Court dismisses the case at the “leave” stage, there will be no reasons, no explanation, and no way to know why. It’s Canadian law. Before starting this Judicial Review (JR) and appeal, you should understand the process, the risks, and the likelihood of success. , Talk to your lawyer if you have any questions or concerns.
When Court decides to “grant leave”
If the Court grants leave, the Respondent (IRCC) must submit the entire file to the Applicant and the Court. Your legal rep and IRCC may submit new affidavits and be examined under oath. Parties can submit more written arguments. Only lawyers attend the oral hearing in Court. No witnesses—only affidavits. The Federal Court usually decides within 30 days of the oral hearing.
Affidavits are not included in legal fees. A provincial notary, lawyer, or commissioner of oath can issue affidavits.
Expectations of the result of the Court case
If you win your case, you won’t get a Study Permit, Work Permit, Visitor Visa, or Permanent Residency. If the applicant wins in court, the refusal is overturned and given to a different officer. The new officer may reject the application for new reasons. It could happen. Even if the Federal Court rules in your favor, a temporary resident visa is not guaranteed.
The Immigration Appeal Division or Refugee Appeal Division hears family and spouse sponsorship and refugee cases first, not the Federal courts. You could try Federal court Judicial Review if these lower-level Appeal divisions fail.
Thus, a simple summary of the entire process to help you appeal your case. Judicial Review begins.
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