When a visa application has been refused and an applicant is convinced that the decision is unreasonable then it may be advisable to file an Application for Leave to Commence Judicial Review with the Federal Court of Canada (the “Federal Court” or the “Court”). The Federal Court has the jurisdiction to review the decisions of visa officers. The Court will determine whether an immigration officer committed any reviewable errors that should result in the decision being set aside. Reviewable errors include errors of fact, law, or breaches of procedural fairness. If an applicant succeeds in Federal Court, then the Court will order that the immigration officer’s decision be set aside, and typically that the application be reconsidered by a different officer. Usually, a successful judicial review will ultimately result in a positive decision from the second visa officer. However, this is not always the case. Furthermore, as the Federal Court of Appeal determined in Lee v. Canada (Minister of Citizenship and Immigration) 2004 FCA 143, there is no obligation on the second immigration officer to specifically refer to the order of the Court in the judicial review and provide reasons as to how and why the second decision differs from the … Read More
Federal Court Rules on Galloway Inadmissibility
The Federal Court has released its decision on the legality of the “decision” to prohibit former British MP George Galloway from entering Canada for having committed terrorism or been a member of a terrorist organization.
Standard of Review in Refugee Appeal Division Hearings
On December 15, 2012, the Refugee Appeal Division (the “RAD“) began considering appeals against decisions from the Refugee Projection Division (the “RPD“) to allow or reject refugee claims. According to the Immigration and Refugee Board of Canada’s website, the steps to a RAD appeal are: Once you receive the written reasons for the decision from the Refugee Protection Division, you have 15 days to file a Notice of Appeal. You have 30 days from the day you received your written reasons for the RPD decision to perfect your appeal by filing an Appellants Record. The Minister may choose to intervene at any point in the appeal. The RAD Member makes a decision on your appeal. In most cases, this decision will be provided to you no later than 90 days after you have perfected your appeal, unless an oral hearing is held. Almost immediately there was uncertainty over what the role of the RAD was. The RAD began operating under the assumption that it would review RPD decisions using the reasonableness standard, and its members began stating that the following principles governed its appeals: that deference is owed to RPD findings of fact and questions of mixed law and fact; … Read More
Court Certifies Question on Judicial Review of 117(9)(d) Refusals
The Federal Court (the “Court“) in Habtenkiel v. Canada (Citizenship and Immigration), has certified a question that if answered in the affirmative would seem to pretty much shut the door on humanitarian & compassionate (“H&C“) appeals of s. 117(9)(d) refusals. The certified question is: In light of sections 72(2)(a), 63(1) and 65 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and the case of Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA 288 (CanLII), [2010] 4 F.C.R. 26 (F.C.A.), where the applicant has made a family class sponsorship application and requested humanitarian and compassionate considerations within the application, is the applicant precluded from seeking judicial review by the Federal Court before exhausting their right of appeal to the Immigration Appeal Division where the right of appeal is limited pursuant to paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227? That question is long and confusing, but lets break it down.
PSLRB Rules CIC Bargaining with PAFSO in Bad Faith
As the Professional Association of Foreign Service Officers (“PAFSO”) strike enters its fifth month, the Public Service Labour Relations Board (“PSLRB”) has ruled that Citizenship and Immigration Canada (“CIC”) is bargaining with PAFSO in bad faith. The PSLRB decision can be found here. CIC has filed a judicial review application of the PSLRB decision. There appears to be no end in sight to the PAFSO strike. However, by now most individuals who frequently interact with CIC have likely realized that many applications are continuing to be processed, and that there are certain steps that can be taken to minimize the impact of the PAFSO job action. Indeed, as the University of Toronto’s Varsity Newspaper reported: For students, the PAFSO strike practically seems to have caused, at most, a limited problem. Visas, while sometimes delayed, are not being withheld with any significant regularity, and in fact seem to be getting processed more efficiently than ever.
Skilled Worker Non-Processing Letters Going Out
And so it begins. Citizenship and Immigration Canada has begun sending letters to Federal Skilled Worker Applicants who applied prior to February 27, 2008, that their applications will not be processed, and that they will soon be contacted regarding a refund. Regardless of what one thinks of the merits of cancelling the backlog (I am sympathetic to both sides’ arguments), the way in which the Government of Canada is executing its decision to cancel the applications is problematic. Indeed, I believe that the government is acting in a way that will lead to court intervention. In brief, the government is cancelling these applications without having yet passed any legislative changes permitting them to do. The Immigration and Refugee Protection Act and its Regulations still state that the affected applicants are eligible to immigrate to Canada. From what I can tell, the Minister is currently governing through press release. Ironically, the press release notes that the cancellation and refund of the above applications will occur as a result of “proposed legislation”. http://www.cic.gc.ca/english/department/media/releases/2012/2012-03-30a.asp The proposed legislation has not yet been introduced either in the House of Commons or in the Canada Gazette. Despite that, Citizenship and Immigration Canada is already cancelling applications. … Read More
Judicial Review of Refugee Decisions
It is devastating for a refugee claimant than when the Refugee Protection Division rejects their claim. At that point, the person essentially has two main options: make a pre-removal risk assessment application or seek judicial review. The objective of a judicial review is to convince a judge that the Refugee Protection Division’s rejection of your claim was either unreasonable or incorrect in law. Applicants cannot introduce new evidence, and are limited to the evidence that was before the Refugee Protection Division Member that heard your case. In this post, I outline some possible grounds that you may use to successfully seek judicial review of a decision. While I strongly recommend that you hire a lawyer to conduct your judicial review, I hope that this post will provide you with some initial ideas to discuss with your counsel. Did the RPD misapply credibility during the section 97 analysis? Under section 96 of IRPA, a claimant must establish the existence of a well-founded fear of persecution tied to a 1951 Convention ground. However, under section 97 of IRPA, a claimant must show on a balance of probabilities that removal from Canada would subject them personally to specified dangers and risks. The evidence … Read More