Victor IngThe hard truth is that not all immigration applications are approved. Clients often come to us asking what their options are for challenging a negative decision. The course of action to take depends upon the type of application that has been made. For the majority of immigration applications, the means of challenging a refusal is by filing a Judicial Review application at the Federal Court. For sponsorship applications or loss of permanent residence status, there is a right of appeal to the Immigration Appeal Division (IAD) which is a branch of the Federal Tribunal, the Immigration and Refugee Board (IRB). In addition, there is also the option of simply re-submitting another application – “if at first you don’t succeed, file, file, again!” Let’s look at these options more closely.
As immigration applications are made to the Federal Government, the appropriate court of jurisdiction is the Federal Court of Canada. In challenging an immigration refusal, it is necessary to file an Application for Leave and Judicial Review. These are two separate requests made to the court in the initial written application – the application for leave is to ask the Court to consider whether to allow your application to proceed and the judicial review is the manner in which the Court can re-consider the decision that is being challenged.
Judicial review is not the same as an appeal. In an appeal, the decision maker can substitute their own decision for that of the original decision maker. However, in a judicial review application, the judge is limited to “reviewing” the decision to see whether it was made according to the law or rules of procedural fairness. The evidence before the Court is limited to only the material that was before the immigration officer at the time of the application and it is all based upon affidavit evidence – there are no actual witnesses in the Court. If the judge determines that a decision was not made in accordance with either the law or the rules of procedural fairness, he or she can only set the decision aside, re-open the case, and refer it back to be reconsidered by another immigration officer. The judge can not substitute their own opinion.
An appeal at the IAD is a “hearing de novo” which means it is a completely new hearing of the application where new evidence can be presented and the Board Member can render a completely new decision. There are typically several witnesses providing “viva-voce” or “live” evidence, as well as documentary or affidavit evidence. If an IAD appeal is not successful, it can then be challenged by way of Judicial Review to the Federal Court.
Both the Federal Court and the IAD are subject to a legal principle called “res judicata” which is a Latin expression which means “the thing has been decided”. Once a case has been decided by a Court or Tribunal, it is not possible to have the case reheard on the same set of facts and circumstances. This precludes applicants from bringing their case before the Court or Tribunal over and over again. In many situations, it is preferable to simply submit a new application with stronger evidence to support the decision that an applicant is seeking. This preserves an applicant’s opportunities for relief before the IAD or Federal Court should they still be necessary. Filing another application is often preferable as it also avoids the expense and delay of a Federal Court or IAD hearing which can take many months and, in some cases, years.
When faced with a refused immigration application, there are several courses of action that can be taken. It is best to consult with an immigration professional to decide what the best option is for your case. While both immigration lawyers and consultants are able to prepare immigration applications and appear before the IRB, only lawyers are able to appear before the Federal Court.
