Keyork Immigration Law

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Federal Court - Judicial Review

Judicial Review of a Visitor Visa Refusal

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Why a refusal?

  • Getting a TRV refusal can often be quite frustrating – especially that in most cases, officers will not provide much explanation as to the reasons for refusal;
  • Officers will mostly provide a standard boilerplate refusal letter by checking off boxes to justify the refusal (ties to home country, travel history, purpose of visit, finances etc.);
  • It is important to understand that as a default, it is not easy to obtain a TRV to Canada, particularly from certain countries;
  • The decision rests on the officer and unfortunately, the outcome can be quite random, depending on the mood of the officer, the officer’s personal discretion as well as internal immigration policies to issue or not TRVs for certain applicants;
  • Even if you have provided with many key documentation, you can still obtain an unfair refusal letter leaving you in the dark about what to do nest.

Should you consider re-applying?

  • If you are determined to travel to Canada, then you can always consider a re-application. The good news is that you can always re-apply for a TRV to Canada;
  • Of course, your immigration history will be available and the officer rendering the decision on the next TRV will have access to the previous refusal;
  • Previous refusals can challenge new TRV application however obtaining a TRV issued following a refusal of a TRV is not impossible;
  • We do recommend that if you do have a refusal and you did not use the services of competent legal representative, that you do retain the services of an immigration lawyer for a re-application;
  • An immigration lawyer will prepare TRV applications much differently then you – in our TRV application we include a detailed legal submission letter (cover letter) outlining the reasons as you should be issued a TRV and the arguments as to why you will return home at the end of your temporary stay;
  • As a law firm, we would also address the previous refusal in the new TRV application to fill in any gaps and provide further clarification and information for the officer’s consideration;
  • Immigration lawyers also include specific supporting documentation along with a detailed Statutory Declaration (if you are visiting someone in Canada) which can go a long way in making the officer understand the particular details of your case;
  • The IRCC website provides a document checklist for TRV applications, however our office will provide you with a much more exhaustive and complete list which can be different then the IRCC website – this is a list which we have prepared over time through our expertise having filed hundreds of applications and knowing exactly what the officer is looking for;
  • Immigration lawyers have specific procedures to prepare and file TRV application which might make the decision process much smoother for the officer;
  • However, it is important to know that even if your application is prepared perfectly by an immigration lawyer, you can still obtain a refusal of your TRV as the ultimate decision rests on the officer;
  • Having a lawyer submit your TRV application is not a guarantee of success but it will definitely increase your chances of success given the experience we have in filing these types of application. 

What other options do you have?

  • There is an ultimate option if you wish to pursue all recourses in order to get an approval on your TRV if you keep getting refusals – it’s a Judicial Review at the Federal Court of Canada;
  • Once a TRV application is refused, within 60 days, you can file a Judicial Review at the Federal Court of Canada;
  • A Judicial Review is a litigation case prepared by an immigration lawyer at the Federal Court in Canada;
  • Only TRV applications which were prepared perfectly and included strong and complete supporting documentation should be judicially reviewed at the Federal Court;
  • The Federal Court process can take about 3-8 months and if the decision is positive, then the TRV application will be sent back to the Embassy for a re-determination by another immigration officer;
  • A re-determination following a positive decision from the Federal Court is usually granted however in some rare cases, an officer may refuse again; 
  • Sometimes the only way to get a TRV approved is through the Judicial Review process;
  • A Federal Court is a last option and should only be considered if your application for a TRV was very strong and we can easily determine that the officer’s decision was unreasonable, in fact and in law;
  • The Federal Court process can be an expensive and long process therefore its important to discuss this option fully with your immigration lawyer to ensure that this is the best strategy for you. 

Federal Court Judicial Review of a Humanitarian and Compassionate Application Refusal

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If you receive a refusal on your permanent residence application under humanitarian and compassionate grounds (H&C) and if this decision is unreasonable, meaning that there is an error of law or of fact in the decision making process, then you might want to consider hiring a lawyer in order to file an Application for Leave and for Judicial Review of the refusal at the Federal Court of Canada. The deadline to file a Leave application is 15 days from the date that you received the refusal letter. In some cases, immigration officers will ignore important and valuable documentary evidence submitted in the H&C and will render decisions which are unfair, unjust and ignore the main objectives of the Immigration and Refugee Protection Act. In other cases, immigration officers will have looked at all of the evidence submitted but the reasoning provided in order to refuse the application is incoherent and not defendable in a court of law. The decision process must be clear, coherent and should not include speculations which does not take into consideration establishments of applicants as well as their hardship if forced to leave Canada. The Federal Court process can take many months and comprises of 2 steps - first the Leave application (permission to go to court) and the second, the judicial review hearing. If we do get leave, then we will be able to argue the case within a hearing at the Federal Court. If the hearing is successful, then the H&C application will be sent back to the overseas visa office for a re-determination based on the Federal Court decision.

A judicial review is a very complex and exhaustive process whereas the immigration lawyer must carefully determine if its worth it to contest the decision. Not all H&C refusals should be judicially reviewed as in some cases, if the initial application was poorly prepared, then it might be recommended to simply re-file with strong and more complete documentation and argumentation. In other cases, although the negative decision is can be a difficult one, at times the actual decision by the immigration officer is reasonable and correct based on the circumstances of the case. Sometimes, we even recommend our clients to do both, to file a Judicial Review of the H& refusal and to re-file for a new H&C if we believe that the unique and vulnerable situation of the case warrants taking action on full fronts, especially for example if there are minor children involved in the application.

It's important to note that there are very strict deadlines when filing a Judicial Review therefore crucial to have an experienced immigration lawyer on file to ensure that the file is processed correctly, for the first step and also for all future steps. In may cases, an officer will render a refusal but will not actually provide the reasons for refusal - should this be the case, then the immigration lawyer can request this from the officer directly, make an Access request or indicate in the leave step that the reasons were not provided. Should this be indicated in the leave stage, then the Federal Court will request the reasons directly from the visa officer overseas which has a duty to submit the reasons for refusal. The reasons for refusal will allow the immigration lawyer to formulate argumentation and to also adequately prepare the applicant's affidavit as well as the memorandum of argument. The memorandum of argument contains the legal argumentation as to why the decision is unreasonable and the case law which supports the case at bar.

If you have submitted a strong and complete H&C application and you received a refusal letter which could be unreasonable and unjust, we recommend that you speak to an experienced immigration lawyer about your chances of success at the Federal Court to receive information on the legal arguments you could formulate based on your unique story and the case law to support you.

Finally, if you are at the stage where you are filing your H&C application, ensure that you focus on submitting a complete and strong application in order to avoid a refusal which might need to be judicially reviewed. This will save time, money and of course a roller coaster of emotions. Immigration lawyers who litigate at the Federal Court are very familiar with winning and losing cases therefore know exactly how to prepare initial H&C application to, one the one hand obtain successful applications and on the other hand, if there is a refusal, to have a file prepared for Federal Court - to have a higher chance to obtain leave and eventually a positive decision following the hearing.

Learn about Humanitarian and Compassionate Refusal and Judicial Review at the Federal Court of Canada