How to maintain Canadian Permanent resident status by working outside Canada

Author: Parminder Singh, J.D. Juris Doctor (Canada)

If you are outside Canada and your Canadian permanent resident card is expired or lost, you must apply to a Canadian Visa office for a Travel document to come to Canada. If you are in Canada, you must apply for renewal of your Canada PR card. A travel document or a Canada PR card is issued by an officer, if he is satisfied that you have met residency obligation. You must prove to the officer that you have physically resided in Canada for 2 years out of the last 5 years.

However, this residency obligation can be met, if an applicant is residing outside Canada along with a Canadian citizen spouse or if an applicant is working outside Canada for a Canadian business or if an applicant’s circumstances allow a humanitarian consideration.

Unfortunately, a lot of applications are rejected because the immigration officers fail to understand the following,

ISSUE

What does “employed on a full time basis for a Canadian business outside Canada” mean?

This article deals with the above question based on the following,

LAWS

 S. 28 and Regulation 61(1)(2)(3) of IRPA, Operational manual ENF 23 (6.5), and the following Cases:

  1. Liu v. Canada (Citizenship and Immigration), 2009 CanLII 84711 (CA IRB)
  2. Lang v. Canada (Citizenship and Immigration), 2011 CanLII 88167 (CA IRB)
  3. Wei v. Canada (Citizenship and Immigration), 2012 FC 1084 (CanLII)

ANALYSIS

A) The Canadian business means, a business that (1) is registered in Canada and (2) has operations in Canada (3) capable of generating profit (capable does not mean the business must generate profit, it means it has capacity to generate profit, even if at times, it fails. (Liu V Canada, supra, at para 8)

If these requirements are met, then for the purpose of meeting residency obligations under s. 28 of IRPA, the overseas employee must be as described under:

B) The Employee

(1)The employee must be on an assignment or contract from the Canadian business described above, which means his employment must be full-time and of temporary nature and his intention is to settle in Canada permanently.

(2)The expression “employed on a full-time basis by a Canadian business” means, that the permanent resident is an employee of, or under contract to provide services to, a Canadian

business, and is assigned on a full-time basis as a term of the employment or contract to

(a) a position outside Canada;

(b) an affiliated enterprise outside Canada;

(c) a client of the Canadian business

Regulation 61(3), IRPA

The employee need not be employed in a foreign branch office or subsidiary of the Canadian business. As long as, the foreign business is either affiliated to Canadian business or is a client of Canadian business, the employee meets the requirements of being employed by a Canadian business. In other words, if the applicant is on a contract or an assignment to work for an affiliated enterprise or a client of the Canadian business, the applicant meets the requirements of working abroad for a Canadian business.

Applicant’s Evidence in support of Canadian Business

The applicant may provide the following evidence which undoubtedly indicates that the applicant’s employer is a Canadian Business.

  •  Canadian business incorporation certificate
  • Owner’s Canadian license to provide services, if possible
  • Canadian business’s ongoing contracts with Canadian companies or clients
  • Canadian business’s financial transactions with companies and clients in Canada
  • Canadian business’s tax payment to Canada

Applicant’s Evidence in support of his contract to provide services to Canadian business through affiliated enterprise or client enterprise in India

  • The contract between the Canadian business and the applicant, which specifically states that the applicant will provide services to the Canadian business on a full time basis against a salary.
  • The applicant’s fulfilment of his contractual obligation to Canadian business (Provide proof of business activities outside Canada)
  • The Canadian business’s fulfilment of salary obligations to the applicant (Provide: salary slips, salary deposit records, applicant’s tax payments to the Canadian Government)
  • The term of contract stating that the applicant will open an affiliated company in India for the purpose of generating business and clientele for the Canadian business under the supervision of Canadian business.
  • The term of the contract stating that the applicant will not work for, either as a full time or part time employee, for any other company, whether Indian or Canadian.

An applicant may submit that neither the Canadian business nor the applicant is required to open a Canadian subsidiary or branch office in a foreign country, under the Identical Name, in order to fulfil his contractual obligations under regulation 61. The regulation specifically requires registration of Canadian business in Canada and not in a foreign country. To operate in a foreign country, the regulation clearly specifies that the applicant must be working under a contract or assignment on a fulltime basis to provide services to Canadian business through

a) a position outside Canada;

(b) an affiliated enterprise outside Canada; or

(c) a client of the Canadian business

In order to be an affiliated enterprise, the enterprise must be under command and control of Canadian company.

The applicant may also be characterized as an employee on an assignment from Canadian business to provide services to the Indian company which is client of Canadian businessbecause it provides clients to the Canadian business.

Please note that the applicant’s identity is separate from the business entity as per the general principles of corporate law. A corporation is a separate and independent entity from its employees and directors. The applicant works for a Canadian business on an assignment as an in-house service provider to the Indian business entity which is a client of the Canadian incorporated business entity.

Employment outside Canada: Guidance in Operational manual ENF 23.

6.5.      Employment outside Canada

The Regulations enable permanent residents to comply with the residency obligation while working abroad, provided that:

        they are under contract to, or are full-time employees of, a Canadian business or in the public service, where the assignment is controlled from the head office of a Canadian business or public institution in Canada; and

         they are assigned on a full-time basis, as a term of their employment or contract, to a position outside Canada with that business, an affiliated enterprise or a client.

An Affiliated Company: Guidance in decision of IRB appeal panel

In Liu v. Canada (Citizenship and Immigration), 2009 CanLII 84711 (CA IRB), the panel stated,

[6]               The main thrust of the submissions by Minister’s counsel, in this matter, is that the appellant has not established that she is employed full time by the Canadian business as provided for in subsection 61(3) of the Regulations.  In spite of voluminous documentary disclosure, the appellant did not provide any document that confirms the Canadian business’ ownership of the Taiwanese company.  The appellant testified that she spent half of her time working for the Taiwanese company.  Thus, if the appellant has not proven that the Taiwanese company is wholly owned by the Canadian company, potentially she would not be able to establish full time work as required pursuant to subsection 61(3) of the Regulations.  However, this section also provides that the appellant could work for “an affiliated enterprise outside Canada” or “a client of the Canadian business”.  I accept the appellant’s testimony that she works, at least full time, in her duties for the Canadian company and the Taiwanese company.

An applicant works for Canadian business in India even if the Indian business is not owned by the Canadian business. He works for an affiliated enterprise for which he is paid salary by the Canadian business against which he fulfils his tax obligations to Canada.

In contrast to Liu supra, the IRB appeal panel rejected residency appeal of the applicant in Lang infra where he was being paid salary by the overseas company even when the overseas company was manufacturing goods for the Canadian company.

In Lang v. Canada (Citizenship and Immigration), 2011 CanLII 88167 (CA IRB), the appeal panel found at para 8 that Lang was not working for Canadian business in China because ,

…His salary was paid by the Chinese company.  The panel gave the appellant the opportunity to clarify the basis under which he provided services to the Canadian company, and he confirmed that he in fact, was paid by a Chinese company, who manufactured goods for a Canadian company.  In the panel’s view, this arrangement does not meet the definition of employment outside Canada by a Canadian business as the appellant has failed to establish the direct relationship between himself and the Canadian company that is contemplated by section 61 (3) of the Regulations.

[9]                  In the panel’s view, the appellant was neither an employee of, or under contract to provide services to, a Canadian business. Nor is he assigned on a full-time basis as a term of employment or contract to,

a) a position outside Canada;

(b) an affiliated enterprise outside Canada; or

(c) a client of the Canadian business.

[10]              The appellant fails to meet this definition, because he has not established that the Chinese company is an affiliated enterprise of the Canadian company or that it is the client of the Canadian business.

In Wei v. Canada (Citizenship and Immigration), 2012 FC 1084 (CanLII), the Federal Court stated that

[52]…It was this Court’s view in Jiang that to have time spent outside of Canada count toward the residency requirement, the permanent resident must be assigned temporarily, must maintain a connection with his employer, and must return to work for it in Canada following the assignment. [emphasis added]

An applicant may provide evidence to show that he maintains a connection to his employer in Canada through

  • provision of services to its affiliated company or client in India
  • through receiving salary from Canadian business and
  • through paying taxes in Canada where he intends to return to join his employer and immediate family members as per terms of contract.

H & C grounds

Even if an applicant’s work outside is not valid for the purpose of calculating residency obligation, the appellant may seek the exercise of discretion to find, taking into account the best interests of a child directly affected by the decision, that there are sufficient humanitarian and compassionate considerations to warrant special relief in light of all the circumstances of the case. The applicant may request an officer to invoke H & C grounds in light of the following factors:

  • The Length of the Breach of the Residency Obligation
  • The Reason why the Appellant Left and Remained Outside of Canada
  •  The Best Interests of a Child Directly Affected by the Decision
  • The Impact on the Appellant’s Family in Canada
  • The Degree of Hardship to the Appellant if Required to Remain in India

Summing up, in view of the established case law,  regulation 61 and ENF23, the applicant’s time spent outside Canada ought to count towards the residency requirement if he works for a Canadian business outside Canada within the meaning of s28(2)(a)(3) of IRPA and its regulation 61(1)(2)(3).  In the alternative, the applicant may seek invocation of discretionary power on Humanitarian & Compassionate ground.

Spelling problem in documentary evidence

Author: Parminder Singh J.D, Juris Doctor (Canada)

Often an applicant is confronted with a situation where her name is spelled differently in different documents. People go long way to correct that error in government records and many a time this is not possible due to time constraints and bureaucratic hurdles. In many cases, the Canada immigration case is rejected due to spelling problem. However, the following case is an authority to deal with this problem and applicants should quote the following case in support of their Canada immigration application.

We will use Kuldeep as an example to illustrate the issue. Kuldeep is spelled Kuldip in applicant’s some documents:

It is respectfully submitted that Kuldeep and Kuldip are the names of the same person. As shown in the passport and other documents, Kuldeep and Kuldip reside at the same address. It is also clear that the person named Kuldeep and Kuldip is wife of the same person in various documents.

The Federal court’s decision in Mohan v. Canada states at para 51 that the “use of a different spelling does not necessarily indicate a different person”. Just because a name is spelled differently due translation or transliteration problem does not indicate that they are two persons:
[51]           Third, the decision of Justice Judith Snider in Canada (Minister of Citizenship and Immigration) v Skomatchuk2006 FC 994 (CanLII) is useful in assessing identity documents that have been translated or transliterated from another language or script. In Skomatchuk, Justice Snider determined that an individual was a concentration camp guard notwithstanding variations in the spelling of his name in the record:

[102]   As a general observation, I would note that the record shows different spellings of the surname “Skomatchuk”. Even documents produced by the Defendant provide a variation on the spelling; for example, “Skomaczuk”. I am satisfied that these differences can be explained by the translation of the name from Cyrillic writing to either English or German. Phonetically, “Skomatchuk”, “Skomatschuk”, “Skomachuk” and “Skomaczuk” are identical; use of a different spelling does not necessarily indicate a different person.

[52]           The general corollary of Justice Snider’s comments in Skomatchuk is that translated or transliterated identity documents ought to be assessed in light of the fact that they have been translated or transliterated.

[53]           Applying these principles to this application for judicial review leads to the conclusion that the Officer was unreasonable in finding that Subhash Mehta was not, on a balance of probabilities, the paternal uncle of the Applicant.

[54]           Even though the Applicant’s marriage certificate identified his father as Madan Lal Mohan and his Bachelor of Commerce Degree identified his father as Madan Lal Mahita, several of his documents (including his police clearance record, the birth certificates of his son and daughter, his employment records, his school records, and his tax records) identified his father as Madan Lal Mehta. The name of Madan Lal Mahita on the Applicant’s Bachelor of Commerce Degree can be rationalized as a problem of transliteration since Mahita and Mehta are phonetically similar.

Mohan v. Canada (Citizenship and Immigration), 2012 FC 1426 (CanLII), <http://canlii.ca/t/fv3b1>

It is, therefore, respectfully submitted that the ruling in Mohan v. Canada applies to the applicant’s case because Kuldip and Kuldeep are phonetically identical names even though they are spelled differently due to translation or transliteration problems as was the case in the names “Skomachuk” and “Skomaczuk in Mohan v. Canada.

Removal orders and Remedies

Author: Parminder Singh LL.B (Canada)

What types of Removal Orders trigger ARC applications

If you have been issued removal orders, what should you do? Do you need permission to return to Canada, which is  known as “Authority to return to Canada” (ARC)? Well, the answer to this question lies in another question:  what type of removal order was issued?

There are three types of removal orders:

  1. Departure order
  2. Exclusion order
  3. Deportation order

The following information will make it clear whether you will need authority to return to Canada:

1. Departure Order (form number IMM 5238)

a) If you received a Departure Order and

  • left Canada within 30 days and
  • verified your departure before exiting Canada

you do not need an ARC.

b) If you left Canada without verifying your departure, or more than 30 days after the Departure Order was issued, the Departure Order automatically becomes a Deportation Order and you will need an ARC

2. Exclusion Order (form number IMM 1214B)

a) If you were issued an Exclusion Order and

  • 12 months have passed since you left Canada and
  • you have a Certificate of Departure showing the date you left Canada

you do not need an ARC

b) If you wish to return to Canada less than 12 months after the Exclusion Order was issued, or do not have a Certificate of Departure, you need to apply for an ARC.

3. Deportation Order (form number IMM 5238B)

If you have been the subject of a Deportation Order you will need to apply for an ARC.

Note: A Direction to Leave Canada (form number IMM1217B) is not a removal order.  As such, you do not need an ARC.

Note: However, if you were deported because of criminality, you will need to apply for criminal rehabilitation prior to applying for ARC. The fee for criminal rehabilitation application is $1000. The issue of rehabilitation will be discussed in a separate article.You may also need Temporary resident permit.

Factors in an ARC application

When an officer assesses your application, they will consider, among other things:

  • the reasons for the removal order
  • the possibility of repeat behaviour that caused the order
  • the length of time since the order was issued
  • your current situation
  • are the reasons compelling for your return

Consider why you were issued a removal order, as well as your current situation. For example, if you were deported because you were working illegally in Canada, and you are not currently employed in your country or you cannot prove strong ties to your country, the officer would have reason to believe that you would not respect the terms and conditions of your stay in Canada.

In a nutshell, if the circumstances that led to the removal order have not changed, the officer’s decision is less likely to be favourable.

If you are applying to come to Canada for visiting, studying, working or immigrating, you should not submit a separate application for an ARC. Once your application is approved, the officer will send instructions to submit an ARC request along with the $400 fee.

Note: if you think, a removal order was issued to you without just cause, you can appeal it in the Federal Court of Canada known as Judicial Review.

 

Predicting Chances of Success in a Visa refusal Appeal

Author: Parminder Singh LL.B (Canada)

Appeal or Judicial review of Refusal of Canadian Visa

One must be surprised to know that even if the law says there is no appeal against the government’s refusal decision, there is a remedy of judicial review of the refusal decision in Canada under the authority of Canadian constitution and common law.

In judicial review, the court looks into the reasons of the decision maker in the light of facts and law of the case and decides whether the decision maker’s decision is reasonable.

After looking into the reasoning processes of the decision maker, the court then determines whether the decision falls within the range of acceptable outcomes, recognizing that different decision makers may reach different conclusions based on facts and law of a case. If the decision is within the range of acceptable outcomes which are defensible in the face of fact and law of a case, the court will not interfere with the decision.

Even if there are logical flaws in the reasoning of the officer and even if the reasons are insufficient, the court will not interfere with the decision if the decision is within the range of acceptable outcomes which can stand up to the law and fact of the case.

In other words if the decision is transparent, justifiable and intelligible in the face of fact and law of a case, it is upheld by the court.

However if the decision is not justifiable in the face of fact and law of a case, the decision is quashed by the court. In the event a decision is quashed, the matter is sent back to a different officer for reconsideration.

There is a rare circumstance when the court will not send back the quashed decision for reconsideration. Where a decision maker has overstepped his jurisdiction or where a decision maker is not interpreting the law closely related to his jurisdiction, the court will not give deference to the decision maker’s decision, rather the court will make its own decision.

Summing up: If a decision is based on intelligible reasons and the decision is itself within the range of acceptable outcomes, the decision will be upheld. If a decision maker is not interpreting his home statute, the court will make its own decision.

 

Issue of non availability of Birth Certificate in Canada Visa Applications

 

Author: Parminder Singh LL.B (Canada)

How to deal with non availability of BIRTH CERTIFICATE in Canada immigration visa applications

Time and again we come across situations where the applicants for Canada visa cannot produce birth certificates as required by the document checklist. When a birth is not registered, the applicants should approach the birth and death registrar in the deputy commissioner’s or SDM’s office and get a “Not Found” certificate and/or they should get an affidavit from their parents that the birth was not registered. The affidavit should identify parents and the applicant’s date of birth. In addition, the Applicants should place the following submission with suitable modifications along with the supporting documents where birth certificate should have been placed if it was available:

BIRTH CERTIFICATE

The applicant’s WRITTEN explanation for lack of birth certificate pursuant to CIC’s Document Check List, para 3, which states as follows:

“Note: …If you are unable to provide any of the requested documentation, please include with your application, a written explanation with full details as to why that documentation is not available and any documentation that would support your claim….”

The applicant’s Age & birth certificate

The applicant does not possess her birth certificate for which she is providing the following substitute documents along with explanation.

The applicant’s age is 36 as shown in various substitute documents.

The applicant is unable to provide her birth certificate because her parents did not register her birth. However, the applicant is providing the following substitute documents bearing her name, date of birth and, in some cases, her photograph. These documents are issued by the legitimate authorities of the country:

  • Unique Identification Authority of India, Government of India
  • Driving License
  • Income Tax department ID Card
  • Educational diplomas, especially Matriculation Certificate (Grade 10)
  • Parent’s affidavit

In submitting the substitute proof of date of birth, the applicant is guided by Section 106 of the Immigration and refugee protection act (IRPA)  which has provisions for substitute documents: Under section106 of the IRPA, where a refugee claimant “does not possess acceptable documentation establishing identity”, the RPD must take into account whether he has “provided a reasonable explanation for the lack of documentation or [has] taken reasonable steps to obtain the documentation.” Matingou-Testie v. Canada (Citizenship and Immigration), 2012 FC 389.

The applicant is also guided by the Document Check list of the CIC forms wherein it states at 3rd para of Document Check list

“Note: …If you are unable to provide any of the requested documentation, please include with your application, a written explanation with full details as to why that documentation is not available and any documentation that would support your claim….”

The instructions in the document check list are supported by Federal Court of Canada’s decision in Mohan v. Canada (Citizenship and Immigration), 2012 FC 1426 (CanLII). Mohan v. Canada stands for the proposition that an applicant is not necessarily limited to a prescribed list of documents (i.e.birth, marriage, and death certificates) in establishing family relationships for the purposes of paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations.

LEGISLATIVE HISTORY OF BIRTH REGISTRATION ACT. INDIA

The applicant submits that In India, the legislation requiring registration of births and deaths came into force in late 1972 and it came into public circulation in the late 1970s through public awareness campaigns by the state governments.

The Indian Federal Birth Registration Act was passed in May 1969. The state govt of Rajasthan enforced it in 1970, the state rules/regulation were framed in late 1972. The public awareness about the rules was initiated by the government thereafter and the birth and death statistics were compiled  from 2000 onwards. http://statistics.rajasthan.gov.in/vital.aspx

Punjab govt. did the same in late 1972: http://pbhealth.gov.in/pdf/civil.pdf

As such, with respect to the birth certificate, the applicant submits that she has explained in detail why she could not obtain her birth certificate. She has taken steps to obtain her birth certificate from her parents who have stated in their affidavit that they did not register her birth as per the prevailing custom and norms. In addition, she has provided various documents issued by legitimate authorities bearing her name, date of birth and pictures.

 

 

Substitute for missing documents


Claimant Without Identification Documents

If the claimant does not possess identity documents, he should give reasonable explanation and provide substitute documents and indicate that he has taken reasonable steps to obtain the required identity documents.

References:

IRPA s. 106

Canada Visa Rejection: financial, language and credibility issues

Author: Parminder Singh, LL.B (Canada)

This is a Frequently asked Question: How to fight or appeal issues of insufficient financial assets, language ability and credibility in Canada work visa refusals ?

In Canada, visas are frequently rejected for lack of credibility, financial stability and English proficiency of an applicant. This article provides case laws and the Canada immigration operational manual guidelines to deal with these issues in a visa application. If these issues are dealt in a visa application, the chances of Canada visa refusals are reduced and the chances of winning a Canada visa refusal case in the court are increased.

ISSUE OF CREDIBILITY

Sometimes visas are rejected because the officer has concerns with respect to the credibility of an applicant. The courts have quashed visa decisions in which the officers have failed to give an opportunity to the applicant to address the issues of credibility.

Even when the concern is not with respect to credibility, the officers are required to give an opportunity to address the negative impressions. The case law is abundantly clear on these issues.

The visa officer breaches the duty of procedural fairness if he fails to provide the Applicant an opportunity to address the officer’s concerns. It is well established that visa officers assessing applications made from outside of Canada owe applicants a duty of fairness, which includes not considering extraneous information and may include alerting applicants to particular concerns arising out of the evidence tendered by the applicant. This was summarized by Mosley J. in Rukmangathan v. Canada at paragraph 22:

Rukmangathan v. Canada (Minister of Citizenship and Immigration), 2004 FC 284 at para 22

This requirement stops short of providing an applicant with a “running score” of any deficiencies.

Rukmangathan v. Canada, supra at para 23

In Hassani v. Canada, Mosley J. held at para 24 that a duty exists under procedural fairness to allow an applicant an opportunity to reply where the visa officer’s concern is with “credibility, accuracy or genuine nature of the information submitted by the applicant.”

Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para 24

Similarly, in Gedeon v. Canada, Russell J. held at para 101 that it was a reviewable error that the visa officer did not provide reasons for rejecting evidence of the applicant’s work experience and did not give the applicant an opportunity to address his concerns. Although visa officer is not required to refer to every item in the evidence tendered by an applicant, the visa officer ought to include relevant and cogent evidence tendered by an applicant in his reasoning. T

Gedeon v. Canada (Minister of Citizenship and Immigration), 2004 FC 1245 at paras 101-102; See also Wang v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 351

FINANCIAL STABILITY

Sometimes a visa officer might have concerns that an applicant for work visa or student visa might not return after the expiry of their visas. This concern arises in officer’s mind because of applicant’s lack of financial stability. The officer thinks that the applicant will have financial incentive to remain in Canada. The applicant should submit in such cases that financial condition on its own cannot justify refusal of a work visa because an applicant for work permit will always apply for work visa so that he may earn more money in Canada than he can earn in his home country. He should submit quote from Rengasamy v. Canada (2009 FC 1229).

ENGLISH LANGUAGE ABILITY

The officers also reject work visa applications because of lack of English ability. In such cases the applicant should submit that an immigration officer should consider employer’s requirement in conjunction with LMO requirements while deciding what level of English would be appropriate for the performance of job duties in question. The challenges to  the applicant in the the broader community, such as availing community services is beyond the scope of the current work permit legislation. It is part of Canada PR legislation where IELTS score is mandatory.

Operational Manual FW 1, s 8.3, OB170

The officers are also required to conduct in house interviews or request IELTS. The operational manual specifically requires that officers should call an applicant for an interview or order him to write IELTS.

Operational Manual FW 1, s 8.3, OB170

The instructions in the operational manual with respect to language requirements find complete support in established cases and regulations. In Gurpinder Singh v. Citizenship and Immigration Canada, 2012, Justice Snider decided that apart from LMO requirement for English, the officer has erred in law where he failed to consider employer’s requirements that no English is required.

Singh v. Canada (Citizenship and Immigration), 2012 FC 814, Can LII

Further even where the officer has given opportunity to the applicant to prove his English level, the officer is bound to to give adequate reasons on why the applicant fell short of English requirements of the job offer. Generally, the LMO requires oral and written English but it does not inform the applicant what level of English is required. The operational manual requires that an officer should write a detailed analysis of their language assessment of an applicant.

Operational Manual FW 1, s 8.3, OB170

In Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), the Supreme Court of Canada held that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” As such, the adequacy of the Visa Officer’s reasons must be assessed and analysed along with the reasonableness of her decision as a whole. The lack of reasons offered by the Officer lend to the overall unreasonableness of her decision to refuse the Applicant’s Work Permit.

Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62 at para. 14

 

 

 

 

 

Guide to Canada Visa Refusal Appeals

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:

  1. 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.
  2. The decision was unreasonable having regard to the evidence properly before the Tribunal so as to amount to an error of law.
  3. The Tribunal erred in law in that it unduly fettered its discretion in the manner in which it conducted the determination.
  4. 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)