It often is a considerable shock to the applicant to learn that their application to immigrate to Canada has been denied. In some cases several years may have passed since the application was filed. The refusal letter, often based on rules and regulations of which the prospective permanent resident is ignorant, may leave the applicant uncertain as to what to do. A denial of an immigration application remains on the applicant’s record and, depending on the circumstances and the reasons recorded on the government computer system, may affect subsequent applications.
It is not helpful to take the situation personally, or to react by angrily seeking to move to another country instead. Canada in fact refuses a large number of applications every year. According to the latest available statistics, from 2006, almost half of all applications in the strategically significant economic and business categories were unsuccessful.
The onus is always on the applicant to demonstrate they meet the specific criteria for the visa category in which they apply. This is where many applications fail. Perhaps the applicant did not produce acceptable documentary evidence to confirm they qualify, or perhaps their application was evaluated in a technical fashion without considering all the circumstances, or perhaps they did not even fully comprehend the requirements for the visa category in which they applied.
If the refusal is because the visa office has misplaced your documents, help may be at hand. By providing a copy of the information that was sent and proof of delivery to the Immigration Program Manager together with a polite explanation of why you believe the refusal was incorrect, you may succeed in having the decision revisited, Be aware though that there are strict deadlines for commencing legal proceedings to challenge a decision in Federal Court or at the Immigration Appeal Division. If these deadlines expire before you receive a reply, it may be too late to file an Appeal.
In the case of a refusal that occurs outside Canada, an application to Federal Court for leave to appeal must be filed within 60 days of the applicant being notified, or otherwise becoming aware, of the refusal. For an application within Canada that is refused, the period is much shorter – only 15 days. The Court may decide to allow an application that is filed late to proceed, but there is no guarantee that it will. It is important to know also that the Court will not consider new evidence. All the judge will do is to look at the decision and decide if a mistake was made by the visa office in applying the law, or if the procedure that was followed was unfair. If the Court decides to allow the Appeal, they will order that the application be re-considered by a different visa officer.
In family class cases such as the refusal of a sponsorship application for a spouse or parent, the sponsor does have the right to a Hearing “de novo”. At this time new evidence can be presented. In these cases the sponsor must file a Notice of Appeal within 30 days of receiving the refusal letter. At the time of writing (2009) there is a lengthy backlog of cases awaiting a Hearing, and these cases can take a year or longer to until a decision is reached.
Another type of Appeal occurs when a permanent resident’s status is in question, or when a permanent resident card is not renewed. The unsuccessful applicant may seek a Hearing by the Immigration Appeal Division, at which the circumstances, including any Humanitarian and Compassionate considerations, may be considered.
In all cases where an immigration application is refused, it is important to seek timely assistance from a competent immigration consultant or lawyer to make sure that your attempt to overturn the refusal has the best possible chance of success.
Ron Liberman is a Full Member of the Canadian Society of Immigration Consultants (CSIC). He is the owner of Best Place Immigration, based in Vancouver, British Columbia. Ron Liberman has served as a national Director of the Canadian association of Immigration Consultants (CAPIC).