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Has your immigration application been refused? No matter if it’s a visitor visa, study or work permit, H&C, or permanent residency application, you may have the option to appeal in the Canadian Federal court. It’s best you understand the whole process before you spend all that time and money with your legal representative. Today we’re going to do a crash course on this entire process.
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The 1st step in preparing for a judicial review for a refusal case (which is the step before an actual appeal) is to request the written reasons for the refusal, by opening a case in Federal Court. The cost of getting the written reasons, “all in”, inclusive of all legal fees, and all disbursements can range from $750 to $1000 Canadian dollars depending on whom you work with, which includes the $50 judicial stamp paid to the Federal Court.
When the reasons are received, you may then decide whether to continue litigation (or the court proceedings). If the written reasons show that there is not a reasonable case for Federal Court (meaning, the case will likely fail), your representative should inform you to discontinue litigation at no additional cost to you by filing a Notice of Discontinuance. Many cases are discontinued at this stage as the ‘reasons’ do not disclose a reasonable case, or another way of putting it is your chances of success are too low to make the whole process feasible for you. Basically, you’re throwing your money away.
If the written reasons disclose that litigation is worth pursuing, your representative will indicate that there is a reasonable case for Federal Court for continued litigation. Legal fees to continue litigation can range from $4,500 to $6,500 depending on your lawyer or legal representative, which are payable from the time you decide to continue litigation to the end of the process, and this is inclusive of all applicable taxes.
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Processing times depend on how strong the case is. If it is very strong, the Department of Justice usually settles the case in about two months before even going to court, and then the visa office needs time to contact the person and have them update their file. That amount of time is not fixed. It could be anywhere from 3 to 9 months, sometimes longer. We have had cases where this happened in less than 3 months, and in some cases, it took longer than 6 months, even closer to 12 months. It will depend on many factors, for instance, if you’re dealing with the Canadian embassy in Poland, they can drag it on for 12-24 months.
In most cases, it is very difficult to overturn an immigration officer's decision in Federal Court with the judicial review process, mainly because this process is a 'judicial review', and not an 'appeal'.
In an ‘appeal’, it is enough if the judge disagrees with the decision of the immigration officer. In ‘judicial review’, even if the judge disagrees with the decision of the immigration officer, that is not enough to overturn the decision. There needs to be more than disagreeing with the outcome based on the merits. There needs to be an ‘error of law’ for you to really have a chance.
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There are sixty (60) days from the date of the reception of the refusal letter within which to commence the process when the refusal is from overseas. After the case is opened in Court, written reasons need to be received from the Respondent (the immigration officer). It can take a few weeks for the written reasons to arrive. After the written reasons arrive, the Applicant has 30 days from the receipt of the written reasons to provide Affidavit evidence and written argumentation to the Court. Remember that in 99% of all cases you cannot add additional supporting documents or proof at this point, everything that was submitted in the original application can be used and all correspondence with IRCC thereafter (which just shows you that you need a solid application from the get-go, and can’t change it later when you’re trying to take it to court).
Then, the Respondent (which is the IRCC in this case) has 30 days to provide their Affidavit evidence and their written argumentation to the Court. Or, in some cases, the Respondent, having seen the evidence and argumentation, may decide to settle at this point, which doesn’t happen very often. The Respondent, or IRCC in this case, would provide a letter to the effect that the refusal will be canceled upon the filing of a “Notice of Discontinuance”, then the case is re-opened, and processing continues. The timeline is unknown as this has been all over the place since the post-COVID period.
If there is no settlement offer at that stage, then after the Respondent (IRCC) provides their Affidavit evidence and written argumentation to the Court (The Respondent’s Memorandum of Fact and Law), there is a ten (10) day period within which the Applicant may file a “Reply”, to address the new points in the Respondent’s material.
Then, everything is sent to a Justice of the Federal Court, and the Court decides whether or not to hear the case. The Court can take a few weeks or sometimes months longer to make this decision. We’ve seen many cases like this drag on for months.
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The Court “grants leave”, and the matter is set for hearing, usually within the following three to four months.
The matter ends there. There will be no reasons or explanation given by the Court for not granting leave, and the case is dismissed. It is CRITICAL for you to understand at this point that if the Court dismisses the case at the “leave” stage, there will be no reasons, no explanation of any kind, and you will not know why the case was dismissed. This is the law in Canada. If you have any questions or issues regarding this point, you need to communicate with your legal representative – however, understanding this whole process and knowing the risks and likelihood of success is important before you decide to start this whole Judicial Review (JR) and appeal.
The Court will order the Respondent (IRCC) to submit a copy of the entire file to the Applicant and to the Court. The two parties (your legal rep and IRCC) may then submit new affidavits, and the parties may be examined under oath based on them. The parties may also submit additional written arguments. On the hearing date, only the lawyers attend the oral hearing in Court. There are no witnesses, only Affidavits. A Federal Court decision comes usually within 30 days of the oral hearing.
The Legal fees you pay do not include the cost of an Affidavit. Affidavits can be issued by a notary or lawyer or commissioner of oath in that province.
Successful litigation does not necessarily mean a Study Permit / Work Permit / Visitor visa or Permanent Residency will be issued. A successful litigation means the refusal is canceled and a different officer takes over the case, but the new officer may find a new reason to refuse the application. That is always a risk, in every case. There is never a guarantee that your temporary resident visa will be issued, even when there is a positive decision in Federal Court.
Remember that for family & spousal sponsorships and refugee cases, the appeals are first heard by the Immigration Appeal Division or Refugee Appeal Division, not Federal courts. At a later date, if you are not successful with these lower-level Appeal divisions, you may opt for Judicial Review at the Federal court level.
There you have it, the entire process summarized for you in simple terms so you can understand the steps that are needed to be taken if you want to appeal your case – which starts with a Judicial Review as the first step.
If you need guidance on your refusals or are considering Judicial Review since you are certain that there is a bias or error of law when a decision was rendered for your immigration application, then don’t hesitate to contact us. Get a FREE assessment, click here.
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