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.
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.