There are few things more upsetting to individuals than when their applications to enter, study, work or immigrate to Canada are rejected. All individuals should be entitled to procedurally fair determinations of their applications that are assessed in a reasonable manner. While Canadian immigration officials do this the majority of the time, there are unfortunately instances where this does not occur. Increased use of advanced analytics and bulk processing software has also become an increasing issue.
We have extensive experience representing individuals at both the Immigration and Refugee Board and the Federal Court of Canada whose applications have been rejected . Our experience allows us to provide an honest opinion as to the likelihood of success at the outset, and where our clients decide to proceed with an appeal or judicial review we always put our best efforts in to ensuring success.
The Immigration Appeal Division
The Immigration Appeal Division allows individuals whose applications to sponsor their family members from abroad has been refused. It is a hearing de novo, which means that new evidence can be introduced that was not before the visa office. All appellants are entitled to a full hearing, and there is also an Alternative Dispute Resolution process to expedite appeals.
Judicial Reviews in the Federal Court of Canada
The Federal Court of Canada has the jurisdiction to review almost all decisions of Immigration, Refugees and Citizenship Canada, Canada Border Services Agency and Service Canada officials. The Federal Court will set aside a decision if it determines that the decision was unreasonable or the result of a breach of procedural fairness. Where it is obvious that a mistake was made, the Department of Justice, the lawyers representing the government, will generally consent to the application being re-opened without there being the need for a hearing. Because we do not proceed with judicial reviews unless we believe that there was an unreasonable decision or a breach of procedural fairness we generally get favorable resolutions.
Examples
Some of our recent experiences representing people challenge rejections include:
Exclusion Order Set Aside
A Saskatchewan provincial nominee with a work permit authorizing him to work in Saskatchewan started working for an affiliated British Columbia company. The Canada Border Services Agency revoked his work permit and issued him an Exclusion Order as he was trying to enter Canada after a shopping trip in the United States. We successfully had the decision set aside, and the Federal Court has since cited the case as standing for the proposition that the Canada Border Services Agency cannot revoke work permits based on past non-compliance. This decision is a reported one (meaning that it is publicly available) and can be found here.
Family Class Refusal Quashed
A Canadian tried to sponsor her husband to immigrate to Canada. The application was refused because he had a lengthy criminal record, although he had been “clean” for some time and because the Canadian sponsor had recently concluded bankruptcy proceedings. In one of the most intense and satisfying cases of my career, the Immigration Appeal Division ruled that there were sufficient humanitarian & compassionate considerations to allow the appeal.
Res Judicata
Res Judicata essentially stands for the principle that once a matter has been decided and appealed that there can be no further appeals. In this case, Canadian attempted to sponsor her husband. The application was refused because immigration officials determined that the primary purpose of the marriage was immigration. Her appeal to the Immigration Appeal Division was unsuccessful. The Canadian then applied to sponsor her husband again, and immigration officials refused the application for the same reason. The Immigration Appeal Division refused to even hear the appeal because of res judicata. The Federal Court set the decision aside, and the case has since been cited in numerous subsequent decisions for the principle that a genuine marriage will be a strong indicator that the primary purpose of the marriage was not immigration. This decision is a reported one (meaning that it is publicly available) and can be found here.
Labour Market Impact Assessment Refusal Set Aside
A Thai company wanted to hire foreign cooks. It stated that candidates needed to have several years of Thai cooking experience to qualify for the position. The Department of Employment and Social Development Canada determined that this was excessive. It appears that there was also a big miscommunication during an employer’s interview over what the employer believed the requirements of the position were. The Department of Justice agreed that the decision was unreasonable, and set the decision aside.
Quebec Investor's Immigration Refusal Set Aside
A Russian person’s immigration application was refused because he could not comply with a visa officer’s request that he provide a copy of his military book. While the officer stated that this was the reason for refusal, internal notes showed that the real reason for refusal was because the officer believed that the applicant had provided fraudulent documents, a concern which the officer never raised. The Federal Court set aside the decision. This decision is a reported one (meaning that it is publicly available) and can be found here.
Study Permit Refusal for Minor Overturned
A visa officer found a study permit applicant who was a child inadmissible to Canada for misrepresentation for not disclosing previous refusals. Relying on internal IRCC training materials obtained through an Access to Information Act which stated that IRCC generally doesn't find minors inadmissible for misrepresentation, we successfully got the ban set aside at judicial review. The decision is a reported one (meaning that it is publicly available) and can be found here.
Scope of Representation
We are flexible in how we structure services regarding appeals to the Immigration and Refugee Board and the Federal Court of Canada. We offer services on an hourly or flat-fee basis.
