Published August 13, 2018
By Rojan Malekzadeh, Barrister & Solicitor
Our office receives many phone calls from frustrated or distraught individuals who have been refused a visa to Canada. Some of these individuals planned to visit family members or close friends in Canada, or were invited to an important event that now, they may no longer be able to attend. They want to know what their options are, if any.
These individuals are often surprised to learn that there are various options to consider!
If you have received a refusal on your visitor visa application, here are three options to consider:
1) Request for Reconsideration
If a visa application is rejected, one option is to request that the visa officer reconsider the decision to refuse the application. Cases at the Federal Court and Federal Court of Appeal, including Canada v Kurukkal, 2010 FCA 230 and Marr v Canada, 2011 FC 367, have held that visa officers have discretion to reconsider a decision, if an Applicant initiates such a request. While a request for reconsideration is not a formal process with detailed or precise guidelines, there are various principles outlined in the case law that are important to bear in mind, including the timeliness of the request. Unreasonable delays can be grounds for a visa officer to refuse to consider a request for reconsideration.
A request for reconsideration may be appropriate in different circumstances. One such circumstance is when it appears that a visa officer has misapplied the law, or ignored or misunderstood documents (evidence) that were included with the visa application. Another example is a situation where the applicant has new evidence that – for good reason – was not previously available or submitted at the time of the initial application. If this new evidence is relevant to the factors of assessment for a visa application, this evidence could be submitted to the visa officer, as part of the request for reconsideration.
Our office has been successful in obtaining a positive decision after submitting a request for reconsideration on a number of occasions.
It is important to note that requests for reconsideration are highly discretionary. The onus is on the applicant to satisfy an officer that reconsideration is warranted. For this reason, there is no standardized format or method to request reconsideration. Each request will depend on the facts, and will be specific to the circumstances of the case.
Moreover, the relevance and application of the law and/or case law will be varied in each and every case. In order to obtain a realistic assessment of a case, and in order to improve the chance of success, we recommend obtaining the assistance of an experienced Canadian immigration lawyer assist with requests for reconsideration.
2) Request a Copy of the Visa Officer’s Notes
Upon receiving a decision that a visa application is refused, it can be extremely helpful to obtain a copy of a visa officer’s notes, since the decision letter usually does not outline the detailed reasons for the refusal. Visa officers are required to record notes explaining why they have decided to reject an application. These reasons can be obtained through a formal request.
Upon receiving the reasons, an individual can better understand the basis for the refusal.
Did the visa officer have specific concerns? What were these concerns? Was the visa officer not satisfied with the documents submitted with the visa application? Or, did the visa officer simply ignore the documentation, and therefore fail to conduct a proper assessment of the case?
With this knowledge gained from obtaining a copy of these notes, it may be advisable to submit an entirely new application, and include additional or different documents to strengthen the application.
In the case where the notes demonstrate an error committed by the visa officer, it may be advisable to challenge the refusal by way of a Judicial Review at Federal Court.
3) Judicially Review the Refusal
Sometimes, a refusal of a visa is unjust or unfair. In these cases, it may be possible and advisable to challenge the refusal through an Application for Leave and Judicial Review at Federal Court (“Judicial Review”).
Through this process, an immigration lawyer can put forward legal arguments to outline the reasons why a decision is unfair, and should not stand. In a Judicial Review, a case may be argued at court, or in some instances, may be settled outside of court.
If a positive decision is issued, or if the case is settled outside of court, the visa application will be sent to a different visa officer to decide on the visa application again (called a “redetermination”). Where the court issues a positive decision, the visa office will be sent a copy of the Federal Court decision and order, which will outline the errors made by the visa officer who decided the initial application. Often, cases are successful in a redetermination, although there is always the possibility that a case can again be rejected for another reason. Another rejection can again be Judicially Reviewed.
It is important to note that the Judicial Review process has very clear deadlines. A Judicial Review must be initiated within 15 days (for decisions made within Canada), or 60 days (for decisions made outside of Canada). This process can only be initiated by a Canadian immigration lawyer – not by a paralegal or immigration consultant.
The chances of success at a Judicial Review will depend on the facts of the case, and the strength of the original application. This is because individuals submitting a Judicial Review are generally not permitted to submit any new evidence - the Federal Court can only consider whether the decision was unreasonable, unfair or unjust, by considering the evidence that was submitted with the original application.
It is therefore advisable to take steps to submit a strong, well-prepared application from the outset. A Canadian immigration lawyer can help to guide you on how to prepare a strong application. Guidance from an expert can reduce the risk of refusal, or where there is a refusal, can help to ensure a strong record in case it is necessary to initiate a Judicial Review.
For assistance with your visitor visa or study permit application, or if your application has been refused, contact us today to see how we can help!