My Visa Application was Refused – Remedies?

The objective of this information is to identify the most effective strategies for handling a visa application refusal in your application for a Canadian student, tourist, or worker visa.

In the event of a visa application rejection, the available options depend on the submitted documents and the quality of the file presentation. These options include reapplying, seeking reconsideration, or pursuing a judicial review. Alternatively, one may choose to give up and not to reapply for a visa.

If your visa application is declined, you have the option to schedule an appointment with a specialist from Batis Immigration to assess your file, GCMS note, and determine the optimal strategies and potential remedies.

Before deciding on the appropriate course of action, it is strongly recommended to take the first step, which involves obtaining a GCMS note (it takes 1-2 months).

1. Re-apply: It’s important to consider that undergoing judicial review is typically a time-consuming and expensive process. In many instances, opting to resubmit the visa application may be the most effective solution. With a new application, there is an opportunity to include additional documents, explanations, and clarifications, especially if the previous submission was self-prepared and there is room for enhancement. To make an informed decision in this regard, it is advisable to consult with your immigration consultant for personalized guidance based on your unique case. Batis Immigration has achieved success in certain cases where reapplication was pursued. However, it’s crucial to note that the decision to approve or refuse a visa ultimately rests with the immigration officers of IRCC, following Canada’s immigration visa policies and guidelines.

Ensuring that your visa application is thorough, meets all eligibility criteria, and is supported by comprehensive documentation and a robust business plan can significantly enhance the likelihood of a favorable outcome.

2. Reconsideration: A reconsideration involves appealing to a visa officer to review a denied immigration application. Individuals/representatives may opt for a reconsideration if they believe there was an error in the visa officer’s decision. This appeal can be for either temporary status (such as a visitor visa Canada, study permit, or work permit) or permanent residency.

The process of requesting a reconsideration is straightforward and does not involve specific rules or fees. It is generally simpler and less expensive compared to other alternatives. The visa officer holds significant discretion in evaluating reconsideration requests, and success rates are typically low. Processing times also depend on the officer’s discretion. However, if the reconsideration request is approved, the immigration application may ultimately be granted. In our experience, if there is no response within 2-4 months from the date of the request, it may be interpreted as the officer not accepting it for reconsideration.

3. Judicial Review: A judicial review is a legal procedure in which a court assesses the actions of a decision-maker. In the realm of immigration law, individuals can submit an application for leave and judicial review regarding a decision made by the Immigration, Refugees and Citizenship Canada (IRCC), such as the denial of a study permit, work permit, permanent residence application, or any other conclusive decision. If the review is successful, the original decision will be overturned, and a different immigration officer will reassess the application.

The Federal Court typically applies the standard of reasonableness during this process, unless there is a violation of natural justice and/or the duty of procedural fairness. This means the court examines whether the decision is reasonable, requiring internal coherence and a rational analytical chain, along with justification based on facts and law.

Under the reasonableness standard, the decision-maker is granted a degree of deference. This implies that the Federal Court is reluctant to easily overturn a decision or replace it with the court’s own judgment. Instead, a range of acceptable outcomes is considered, and the IRCC’s decision must fall within this acceptable range.

• Deadline for filing Judicial Review: Filing an visa application for leave and judicial review at the Federal Court comes with specific deadlines. Upon receiving a refusal letter, you must act within 30 days for matters within Canada and 60 days for files outside Canada. While it’s possible to request a time extension, such requests require special reasons.
• Should the Federal Court approve your request for judicial review, the decision made by IRCC will be nullified, leading to a reversal of the initial rejection. Your original application will be sent back to IRCC, and a new immigration officer will reassess it using the initially provided information. It’s important to note that, despite the Federal Court’s approval, there is still a possibility that another immigration officer may reject your application.
• The processing time for judicial reviews, based on our experience, varies from 6 to 30 months. A shorter processing time is typically observed when IRCC’s lawyer accepts an early settlement.
• A judicial review should only be pursued as a last resort, as the Federal Court exclusively examines final decisions. For instance, if the Immigration, Refugees, and Citizenship Canada (IRCC) issues a letter of procedural fairness, indicating an ongoing administrative process, initiating a judicial review at that point would be inappropriate. In such cases, where a conclusive decision has not been reached, the judicial review process is considered premature. The Federal Court emphasizes that a judicial review is only entertained when all alternative avenues have been explored.
• A judicial review involves a judge reevaluating the initial application, and generally, no new evidence can be introduced. Therefore, if the initial application is weak or incomplete, opting for a judicial review might not be suitable. It is crucial to recognize that a judicial review does not provide an opportunity to submit additional supporting documents. Instead, it is advisable to consider fortifying the immigration application and reapplying. If faced with another rejection, the option to file an application for leave and judicial review should be pursued for the second, improved application.

The Visa Application Process for Judicial Review Consists of Two Main Stages

In the initial stage, the applicant seeks “leave,” or permission, from the court to have their case reviewed. The court exercises discretion in deciding whether to grant leave, considering factors such as the likelihood of a mistake in decision-making or the presence of a legal question without precedent. If the immigration application refusal or dismissal of an appeal appears correct, the court may decline to grant leave. If leave is denied, the applicant’s only recourse is to submit a new application, provided they are eligible to do so.

Moving on to Stage 2, which is the actual Judicial Review, it takes place only if leave has been granted. If leave is not granted, the matter is concluded.

The Judicial Review Process can Culminate in Two Possible Outcomes

–  IRCC lawyer, may opt to settle the matter before a full hearing if they believe there’s a high likelihood of the Federal Court judge favoring the applicant. Settlement is entirely at the discretion of the Department of Justice. If settled, the refusal is overturned, and the application returns to the visa office for redetermination without a judge’s review.

–  If an IRCC lawyer believes they are likely to prevail, they allow the matter to proceed to a hearing with the Federal Court judge. The judge then makes the final binding decision. If the judge determines that the refusal decision was not in error, the decision stands, and the case is closed. Conversely, if the judge finds the refusal decision was incorrect, it is overturned, and the application is sent back to the visa office for reconsideration by a different officer.