Canada Visa Appeals against refusals and delays
Author: Parminder Singh, LL.B (Canada)
The visa refusal is a traumatic situation. It is a dream shattering experience. However, there is nothing to panic about in a civilized society like Canada where the appeal remedy exists for all kinds of visa refusals.
How much time it takes to appeal a Canada visa refusal decision
The visa refusal appeals in Canada take 6-7 months to resolve in the Federal Court of Canada. The tribunal appeals take a year to resolve.
Visa refusal appeal procedure for non-citizens and citizens
A citizen can file the visa refusal appeal in the tribunal while a non-citizen can file the visa refusal appeal in the Federal Court of Canada. The tribunals have powers to overturn the visa refusal decision of an officer and make a new decision, while the Federal court can only quash the visa refusal decision and send the matter back to another officer for re-determination. This means that the power to decide the case lies with the immigration officer, while the power to check whether or not the decision was lawful lies with the Federal Court. It is for this reason that the Federal Court appeal process is called Judicial Review while the tribunal procedure is called appeal process.
The decisions of tribunals can further be appealed in the Federal Court. The decisions of Federal Courts can be appealed in the Federal Appeal Court and Supreme Court of Canada.
Writs against Visa delays
Since government is responsible to make decisions in a timely manner, any “unreasonable delay” in visas can be challenged through a writ called Writ of Mandamus in the Federal Court of Canada. Make note that the delay must be an “unreasonable delay” and not merely a “delay”. An unreasonable delay is a delay which occurred due to a visa officer’s unexplained lethargy and not due to applicant’s lethargy. Normally if an application takes 3 years of processing time and the visa officer has delayed deciding a case for 5 years, without explaining the reasons for delay, the courts have found it to be an unreasonable delay.
Time limit within which an appeal must be filed
From the day an applicant received the Canada visa refusal decision, the applicant must challenge the negative decision within a time period of 60 days for Federal Court appeals and within 15 days for tribunal appeals. If the applicant is within Canada, the Federal Court appeal must be filed within 30 days.
What normally are the grounds for Canada visa rejections
Visas get rejected for several reasons. It could be due to,
- an incomplete application
- insufficient documentary evidence
- lack of evidence that an applicant will return after expiry of a visitor, worker or student visa
- lack of financial capacity in student or visitor visa
- misrepresentation of facts
- lack of language ability in work and student visa applications
- deficiency in describing the experience in the experience certificate
- failure to explain gaps in study in a student visa application
- mismatch between previous and proposed study in a student visa application
- failure to prove residency of relative in Canada in PR applications
- Security reasons or criminal record
- Medical reasons, where the health of an applicant may pose threat to Canadians or it may cause excessive burden on free Canadian health care system. Note however, that the burden must be excessive and not average burden. Normally officers make mistakes in calculating the quantum of burden and hence their decisions get challenged in courts.
Avoiding Visa refusals: hiring a right consultant or a lawyer
The first step to avoid visa refusal traumas is to submit a perfected visa application. Make sure you get advice from a competent person who has experience and proper qualifications to advise you. The education and experience of your consultant ought to be in immigration law. Read our article on “How to Choose a Right Immigration Consultant” for further information on this topic.
Grounds for challenging a Canada visa rejection
However, if the visa gets refused despite the perfected application, do not panic. The visa officers make mistakes in deciding visa cases. Hence the visa decision can be challenged in courts on various grounds, such as:
- The decision was unlawfully made, in that the Tribunal denied the Applicant natural and fundamental justice as a result of the conduct of the hearing.
- The decision was unreasonable having regard to the evidence properly before the Tribunal so as to amount to an error of law.
- The Tribunal erred in law in that it unduly fettered its discretion in the manner in which it conducted the determination.
- The Tribunal lost jurisdiction and erred in law in ignoring evidence, in taking into account irrelevant evidence, in misinterpreting evidence properly before it, in making erroneous findings of fact without regard to the evidence before it, and in failing to properly understand the evidence.
How do you know your appeal has merit
A Canadian lawyer is bound by rules of professional conduct to give a truthful legal opinion on the merits of your case just as a medical doctor is obligated to give honest opinion on the risks in an operation; failing this their licenses may be in jeopardy.
At Singh and Associates, we provide visa appeal services. Our Canadian Visa appeal lawyers are competent and experienced . They go through your entire file for a consultation fee and give their opinion on the merits of your case before filing an appeal. Only a licensed lawyer can appear for a Federal Court Appeal case, whereas a tribunal appeal can also be filed by a certified consultant. An applicant can also file his own appeal in the tribunal.
Parminder Singh LL.B (Canada)