Immigration Canada - What do you do after you have been denied

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sangria

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May 16, 2006
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This thread is intended to provide/share information for those who have been denied Permanent Residence Status by Immigration Canada and to help them choose the best path to take in contining the process to be reunited with their spouses.


This thread is open to:

- Questions/Answers regarding the steps required to reapply or appeal Immigration Canada's decision on you/your spouses PR visa application.

- Sharing your personal experience throughout the appeal process.


**Note**
Any personal attacks against Immigration Canada, their interviewing officers or discussing personal reasons for denial will be deleted.
 
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sangria

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May 16, 2006
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Appeal Lingo

IAD - Immigration Appeal Division
ADR - Alternative Dispute Resolution

Once you have been denied the visa office must...

- notify the sponsor of their right to appeal
- provide a copy of the refusal letter sent to the applicant
- include all immigration file numbers for reference
- provide the instructions/form for starting the appeal process - appendix B (see link below)


Notifying IAD that you want to Appeal
- Form must be sent to the IAD Registry Office within 30 days of receiving your refusal letter
- You must include a copy of your refusal letter when you send in the notice of appeal form
- If you choose to use a lawyer or consultant, you must advise the IAD in writing with your representative's information, address, phone number etc.

Page 56-61 of the following link lists more information on the beginning of the process & the address of the IAD Registry Office in your province.

http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf

Once the IAD has your request to appeal
- They will determine if you are approved to appeal
- The full visa file including CAIPS notes will be sent to you or your representative within 120 days.
- If you are approved to continue the appeal, you will likely be scheduled for an ADR hearing

ADR Hearing

An ADR hearing is an opportunity for the sponsor, a representative from CIC and an impartial mediator to meet.

The CIC representative will interview the sponsor, review additional evidence provided to them prior to the hearing date and possibly overturn the previous decision.

**If your refusal letter outlines that your spouse was denied because they didn't know enough about you then the likelyhood of the results being changed are very slim. They will likely reccommend waiting for the final step which is a full court hearing.

Full Court Hearing

Full court hearing is in front of a judge with you being represented by a lawyer and your spouse being teleconferenced in (also represented by a lawyer) and RE-Interviewed.

At this point, the judge would make a decision to approve or deny the request for the visa.

If it is approved, the file is sent back to PAP for further processing.


Should you use a Lawyer or Immigration Consultant?

During the initial stages of the appeal process including the ADR hearing, representation is not required but may be very helpful.

A lawyer or consultant will not be able to help you or say anything during the ADR hearing.

Lawyers/Consultants will have the necessary knowledge to help you through this part, coach you in advance of what will happen, prepare & submit additional evidence to support your case etc.

If the process continued to a full court hearing, legal representation would be required.


How long will this process take?

Going through the appeal process can take a long time. It can be close to a year before you attend an ADR hearing and another 1-2 years to have completed the full court hearing.


More info on the appeal process can be found here...

Links:

http://www.cic.gc.ca/english/resources/manuals/enf/enf19-eng.pdf

http://www.irb-cisr.gc.ca/eng/brdcom/references/procedures/proc/iadsai/info/Pages/marriage.aspx
 
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twillis

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Hope I never need it but thanks for all your work Sangria. You are always so helpful.
 
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El_Uruguayo

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Dec 7, 2006
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Actually Sangria,

I'm pretty sure that the IAD applies to cases within Canada. Overseas cases generally have to make an Application for Leave and Judicial Review (ALJR) to the Federal Court. The purpose of the Federal Court is to oversee government actions, procedures etc, as it the the ministry itself cannot exactly police itself. A visa officer is essentially a Minister's Delegate - they can make decisions on behalf of the Minister. Anyhow, there are a number of reasons as to why one can appeal, ranging from Error in Law, Error in Fact, applied the wrong test, Lack of Natural Justice (procedural fairness), etc.

The process is as such. An overseas case has 60 days from the date of the decision (or the date the decision was recieved) to file an ALJR. The application basically states that the tribunal (visa officer) erred in that they did not act accordingly to law, made an error, did not take into account all the evidence before them, etc. It also seeks remedies, which would most commonly be a redermination by a different officer, or in some cases a direction that the visa officer complete the assesment of the file(in cases that files take forever), or in rare circumstances it can be an order with directiones (i.e. redertimine the file, with a positive outcome). Costs are very rarely awarded.

So timelines. ALJR filed in federal court. After that date, the applicant (person) and respondent (Minister of CIC) have 30 days to file their factums and affidavits. Then there is some time to review each others affidavits etc (within this time the applicant should recieve written reasons for the decision - this is not the refusal letter, but rather the caips notes). Then it goes before the judge - there is no cross examination with the applicant or anything, its just the counsel. If the judge finds that there are grounds, leave is granted - then the trial starts, and there is some more time granted to prepare. If it is dismissed, there is no appeal.

So once leave is granted, there is some more time given to each side to prepare - i think it is 90 days, and a court date is set. These trials are expedious, ranging from 2-3hrs max, or in rare cases with large files a couple of days to a week. When all is said and done, the judge can issue a judgement and order. Start to finish, you're looking at a minimum of 6 months.

In some cases, at the early stages the government will consent if there is some obvious grounds to do so - if not they will let it go to trial.

What is key to understanding if a case has a chance are the standards of review which are reasonablness and corectness. Corectness is applied to law - if a law is not applied as it is supposed to, it is not correct, judicial review will be granted. As for reasonableness its more subjective and open to a bit of interpretation and discretion, however there are some key factors which might let one know if they have a chance - for this you need the caips notes.

Top on the list would be if the officer writes about concerns in the CAIPS notes, but does not give an opportunity for the applicant to respond - it is a breach of Natural Justice. An officer may apply the wrong test, i.e. states that the sponsored person does not have a job lined up in canada, therefor refused - the person having a job or not is irrelevant, therefor it is a breach of Natural Justice.

There are many things that can be picked at from the notes, but what is important that the entire case be strong. If there are several factors pointing towards a refusal and you find grounds to reverse part of that, it won't necessarily change the outcome.

Basically if you can prove any of the following, you have a case:

(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.

Anyhow I'll leave it at that for now.
 
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sangria

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May 16, 2006
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Thanks El_Uruguayo

Dominican_Daisy, one of our posters went through the process as I listed it.

She had to request the appeal, submit additional evidence, was sent to the ADR hearing, next step court date set.

She opted at that point to withdraw her appeal and reapply.

All other information was taken directly from the CIC operating manuals with links provided.

I know for some types of visas, ADR hearings are waived and go directly to court (ex. common law cases). I'm not sure why this is.

Hopefully DD will write to share her experience and her path through the appeal.
 
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sangria

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May 16, 2006
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Taken from the link El_Uruguayo posted - Immigration Matthew Jeffreys

Appeals by Sponsors:

In situations where a Canadian citizen or permanent resident has attempted to sponsor a family member and the application was rejected by the Immigration authorities, an appeal may be made within 30 days of receipt of the refusal letter.

Persons who appeal to the Immigration Appeal Division will be permitted to present new evidence in support of their case and may personally testify before a Board Member. The IAD will consider whether the negative decision was legally made, and may also consider Humanitarian and Compassionate factors related to the case. If the IAD decides the decision was wrongly made, or there exist compelling Humanitarian and Compassionate factors, it will overturn the original decision and send the case back to be re-decided in accordance with its findings. If the IAD dismisses the appeal, a further appeal of the IAD’s decision may be made to the Federal Court.

I think this sums up the general process of appealing within the family class.
 
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AnnaC

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Jan 2, 2002
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I'm a little confused on one point. I like taking the info straight from the CIC website.

On this page,

http://www.irb-cisr.gc.ca/eng/brdcom/references/procedures/proc/iadsai/info/Pages/marriage.aspx

under ;

PREPARING FOR YOUR APPEAL
You should come prepared to deal with all of the reasons the visa officer gave for refusing your spouse's application. But the Minister's counsel or the IAD Member may also ask you questions about anything dealing with your marriage and your relationship with your spouse.
It is important to know that for sponsorship appeals of marriage cases, the IAD Member can only decide if the refusal is legal. The Member is not allowed to consider whether there are humanitarian and compassionate reasons for allowing your appeal.
 
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coco55

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Apr 25, 2009
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I would like to know if we can have back all the documents we sent to hait if we arent going to appeal? Is ti the only way for us to get back all the evidences^
 
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coco55

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Apr 25, 2009
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Do you think the shorter way is to say that we will appeal and them use the documents to reapply or try the ADR first and reapply if it didnt work? Im a little confused?
 
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El_Uruguayo

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You get back all the evidence they used to take into consideration for the decision in a Certifed Tribunal Record (CTR) at the point that leave is granted (basically at the point at which the judge decides if you have enough substance to your case for it to go through.)

If you find that there are things written in the CAIPS notes or the record which you did not have a chance to respond to, you have a case. If there are many things which you didn't have a chance to respond to, or irrelevant considerations, you may have a case for consent. Really depends, if it is weighing on 1 or 2 small things, even if it is redetermined, it might not go favorably for, if there are lots, then it could go well. Based on the timelines given, and the cost of lawyers, it may not be a bad idea to reapply, in that 1) it may take less time than an appeal 2) may be cheaper, 3) proves that you are serious. The imporant thing is consistancy between the first and second application. If you have just been denied, and are still within the 60 day period, you can do an ATIP request to get the info they used in making their decision, and try to strengthen what appeared to be weak, and supplying new evidence.

I'm really not sure, it seems that reapplying may be the way to go, unless there is some gross negligence, and taking it to court could set a precedence, or be consented upon quickly, it seems as though taking it to court might not gain anything. It could take a bunch of time before a verdict is reached, and if that verdict is negative for you, then you have lost time in which your application could be processed.

It's a tough say.
 
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cathay

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Oct 13, 2008
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Question?

If you decide not to appeal how long does it take for Immigration Canada to return all of the documentation you submitted with your application?
 
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sangria

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May 16, 2006
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So far, I have found out the following...

1) You can request your CAIPS notes including your VISA file.

- I am not sure if this gets you back all of your original proof of relationship documents, pictures, copy of the answers you provided etc. I have read that it gets you a cd version of your application. Probably not the ideal answer but would at least get you some information so that you could be sure you answer the questions the same and don't have any discrepancies between the 2 applications.

2) If you send in the notice of appeal, you will automatically get your full visa file back including caips notes (all originals documents/proof that you sent in). You could then withdraw your appeal at any time and then turn around and reapply at no cost to you.

I have put the question out to a couple of other immigration experts to see if there is a 3rd option...will post as soon as I find out more.
 
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sangria

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May 16, 2006
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To properly answer Cathay's question....your visa file won't automatically be returned to you in full if you decide not to appeal.

After talking with a few people that are in the middle of an appeal....

Some received their entire file back including all original proof of relationship items and CAIPS notes.

Some only received a partial file back.....CAIPS notes, most forms with their answers, some proof but not all things were returned.



3rd Suggestion....
It was also suggested that you could send a letter in writing to PAP, asking for all your items to be sent to the embassy in Santo Domingo for your spouse to pick them up.

It looks like the best option is to send the notice of appeal and if it is too late for that, order your CAIPS with visa file as well as asking Haiti to return your things. This might be the best combination to get the most items returned.
 
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cathay

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Oct 13, 2008
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I just read on the document checklist they provide when you originally make your sponsorship application that all documents will be returned to you once a decision is made. Doesn't say how long it takes to return them though.
 
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mart0417

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Oct 25, 2006
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my expereince

I have been asked to share my expereince after my husbad's visa to Canada was denied. So here goes.....if you have questions please ask, I am willing to share whatever info I can.

to start our first application was denied in January 2007 the reason given were (1) could not show the valitity of our marriage ( 2) after recent circumstances we ( immigration) feel there has been a major change to your situation. My husband had already gone through the interview process and we thought his visa was on the way, then he was called for a second interview they gave him about a 2-3 day notice of the interview, so he went and at the interview an immigration officer asked him some more questions. there was a lot of focus on our recent circumstances ( if you don't know the story jsut ask) and when she was done interviewing she left the room and came back in about 5 minutes and said I'm sorry Mr. **** we are goning to refuse your application and that was the end of that. She asked him to leave and if he had any questions he should contact his sponsor.

I was already in Puerto Plata so when he told me this we started to ask many questions we found it really hard to get into immigration without an appointment to talk to someone when we explained that I was there from Canada and was leaving in a few days someone felt sorry for us and booked an immiediate appointment. WE spoke with an officer and he informed us that the decison was finally and our option was to appeal. All I am going to say on here is about that is it was an awful expereince and if you want more details PM me. So I flew back to Canada contacted many lawyers who all said the same thing find an immigration specialist lawyer, I contacted my MP who said he would look into it, I finally got in contact with an immigration lawyer in Calgary who I met with a few times and provided all the information. He informed me that an APPEAL is very very expensive and are very rarely granted, his suggestion was to reapply.

I spoke with my husband and he spoke with a lawyer in the DR who agreed to reapply was easier and said it woudl then prove that we really wanted to be together. So we started our new application in Mar of 2007 and my husband was granted his visa without an interview the 2nd time and arrived in Canada July 2008. So my advice skip the appeal process and go right into a 2nd application. And FYI I involved my MP right from the beginning on my 2nd application. Good luck to you all and like I said if you have other questions or want more personal details just ask or PM me. Hope this was helpful
 
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sha

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Oct 22, 2012
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my sponsorship APPLICATION

mY Husband and i applied he is a citizen they denied me we have been togthr in this countty for 5 years and married for 4 now i have to go back and my husband is doing out of country sponsorship u think after i go to my country i can reapply right away for canadian visa so i can come back and live with my husband till they call us for another interview will they give me a canadian visa knowing i was just in canada and my husband is in canada =
as long is i can show them proof of sponsor application in process i dont think they can keep a wife from her husband









I was already in Puerto Plata so when he told me this we started to ask many questions we found it really hard to get into immigration without an appointment to talk to someone when we explained that I was there from Canada and was leaving in a few days someone felt sorry for us and booked an immiediate appointment. WE spoke with an officer and he informed us that the decison was finally and our option was to appeal. All I am going to say on here is about that is it was an awful expereince and if you want more details PM me. So I flew back to Canada contacted many lawyers who all said the same thing find an immigration specialist lawyer, I contacted my MP who said he would look into it, I finally got in contact with an immigration lawyer in Calgary who I met with a few times and provided all the information. He informed me that an APPEAL is very very expensive and are very rarely granted, his suggestion was to reapply.

I spoke with my husband and he spoke with a lawyer in the DR who agreed to reapply was easier and said it woudl then prove that we really wanted to be together. So we started our new application in Mar of 2007 and my husband was granted his visa without an interview the 2nd time and arrived in Canada July 2008. So my advice skip the appeal process and go right into a 2nd application. And FYI I involved my MP right from the beginning on my 2nd application. Good luck to you all and like I said if you have other questions or want more personal details just ask or PM me. Hope this was helpful[/QUOTE]
 
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