ARTICLES/Q&A
Hearings & Appeals
Before proceeding with any application or travel to Canada, you should always check the current entry requirements related to COVID-19, which are continuously evolving and may affect your circumstances.
My brother applied for a visitor visa to Canada and was recently refused. He received a form letter refusing his visa and it is not clear why he was refused as he has visited Canada in the past and did not violate any laws while he was here. Is there any way to find out if there has been some kind of mistake or to have his application re-opened?
Any applicant may apply to the federal government to obtain a copy of the officer’s computerized notes by filing an Access to Information and Privacy request. Usually, the notes will provide some insight regarding the officer’s reasons for refusing an application. Although he could make an application for judicial review at the Federal Court, generally this is not recommended due to the length of time and cost associated with such applications. Instead, if there has been a mistake, or if your brother wishes to address any issues the officer raised, it would be better to make a new application. He could provide further documents, information or explanations to satisfy the officer that he should be granted a visitor visa and will abide by Canadian immigration law. As there may be various issues involved, your brother should obtain proper legal advice prior to making a second application.
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I came to Canada as a permanent resident about ten years ago, and I am now a Canadian citizen. I sponsored my second wife to come to Canada as a permanent resident but her application was refused because she did not disclose the fact that she had a son from a previous marriage. She did not disclose this because her ex-husband has custody of the child and she does not have any opportunity to see him. Is there anything we can do?
As the law requires an applicant to disclose all dependents, whether accompanying or not, your wife was probably found to have engaged in misrepresentation for failing to disclose her son. Misrepresentation cases are quite complex as it includes intentional and unintentional, direct and indirect misrepresentation or withholding of material facts that could lead to an error in the administration of the Immigration and Refugee Protection Act. Officers have some discretion whether to make a finding of misrepresentation, however if she has been found to have misrepresented herself, she will likely be barred from making a new application for a period of five years. However, as the sponsor, you can file an appeal at the Immigration Appeal Division, and the member will consider whether the refusal is valid in law and also whether there are any humanitarian and compassionate grounds to allow your wife to come to Canada. Depending on the specific facts and circumstances, you may have grounds to appeal and should obtain detailed legal advice as soon as possible.
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Many years ago, I sponsored my parents to Canada and their application was recently refused. The reason for the refusal is that my father originally failed to disclose that he had another child from a previous marriage. That child is already 21 years old and lives with my father’s ex-wife who has custody of him. He didn’t disclose him at first because he did not think he had to be included. I would like to know if I can appeal this decision, as it is almost impossible to re-sponsor under the new system.
Sponsors usually have a right to appeal to the Immigration Appeal Division (IAD) a refusal of a parents’ sponsored application for permanent residence. However, in very specific circumstances, the Immigration and Refugee Protection Act and regulations provide no right of appeal. In particular, where the foreign national parent is inadmissible on grounds of misrepresentation, the application for both parents will be refused and the sponsor has no right of appeal. This can be quite complicated, because if a visa officer makes an error in determining that there was a misrepresentation, the sponsor could have a right of appeal. In the circumstances you described, there may be a right of appeal depending on the detailed facts and law. If there is no right of appeal, then then your parents may be able to make an application for judicial review, or, as you indicated, attempt to re-apply in the future. You should obtain detailed legal advice from a lawyer as soon as possible to determine whether to file the appeal, apply for judicial review, or both.
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I applied for permanent residence under Express Entry but my application was refused because the officer said my employment letter did not meet the requirements of the position. I realize that when I applied, I chose the wrong NOC code for my position, but my position is still a NOC A position. Is there anything I can do to overturn the refusal?
It is very important to be accurate when completing the application process to avoid unnecessary refusals as you cannot overturn the refusal when you make an error on the relevant NOC code. Instead, you should re-apply using the correct NOC code. Many qualified applicants are refused due to deficient employment references, so it is essential to ensure that your employment reference meets the legal requirements. Please be aware that there will be a previous record of the refusal so you will need to explain the reason for the refusal and clarify the situation very carefully. In cases of obvious mistake, there should be no issue, but where an applicant tries to re-draft an employment reference that was previously submitted, many issues could arise, including misrepresentation. Make sure you obtain proper legal advice prior to re-applying.
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I previously applied for permanent residence under Express Entry but my application was refused because the officer found that I did not have the required work experience. I believe that I do have the required experience and I am not sure how to appeal this decision or what I should do. How can I deal with this negative decision?
There is no appeal from a refusal of an application for permanent residence under Express Entry; however, an applicant who believes there has been an error can apply to the Federal Court for leave and for judicial review of the decision in certain circumstances. The problem with applying to the Federal Court, however, is that the process is time-consuming and costly and the grounds for judicial review are somewhat narrow. It would likely be preferable to simply re-apply for permanent residence, ensuring that the issue is properly addressed in your second application. When an application has been refused, you must have an exact understanding of the basis of refusal and prepare detailed evidence to overcome it and to satisfy the officer that you do, in fact, qualify. As refusals based on insufficient or non-qualifying work experience are quite technical, you should obtain proper legal advice to determine the best approach.
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My application for permanent residence on humanitarian grounds was just refused and I want to know if I can appeal the decision. I have been in Canada for over 10 years with my family and I don’t understand why my application was denied.
There is no right of appeal; however, you can apply to the Federal Court for leave and for judicial review. An application for leave is essentially asking the Court for permission to go to Court and have a hearing before a Federal Court Judge. The application for leave is extremely important as the Court will decide at this first stage whether there are grounds for judicial review, such as an error in the decision, a breach of procedural fairness, or whether the officer ignored important evidence or other issues. You should hire an experienced lawyer to handle your application as the issues can be quite complex. If the Court grants leave, a hearing will be set, and you will be able to appear in Court and orally argue your case. New evidence cannot be introduced, so you will not be permitted to testify. You must file your Application for Leave and for Judicial Review within 15 days of receiving the refusal letter. After that, you will have 30 days to prepare the written record which will include all of the relevant documents, your affidavit and our written legal arguments. The government’s lawyer at the Department of Justice will then have a further 30 days to respond to your application with their own written record. Your lawyer will also prepare a reply to their arguments within 10 days after that. Once all of the written materials have been received by the Court, you will need to wait for a judge to decide whether to grant leave, which usually takes about 4-6 months, but can take longer. If leave is granted, you will have a hearing several months after that. You should speak to a lawyer right away to decide whether to file an application in Federal Court, or whether there are other options available to you.
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I applied to sponsor my wife and her daughter. Although her daughter is over 22, we were told we could include her and request that she be processed on humanitarian grounds. As they have no other relatives at all, my wife is not willing to leave her daughter behind. We recently received a letter that my wife’s daughter is ineligible due to her age, and she is being removed from the application. Can I appeal this decision? Is there anything else we can do?
As your wife’s child does not meet the legal definition of a dependent child, she is ineligible to be sponsored as a member of the family class. It is correct that despite her ineligibility, you can request that the officer consider humanitarian grounds, but the officer will have discretion to decide whether the grounds are sufficient. When making applications on humanitarian grounds, it is essential to explain in detail the circumstances, and provide documents to support the facts and arguments you are making. This could include statutory declarations from your wife and her daughter, letters from relatives, friends, colleagues, teachers and others, proof of financial dependency, photographs and even psychological reports. If an officer determines that there are insufficient humanitarian grounds to grant permanent residence and therefore removes the child from the application, there is no right of appeal to the Immigration Appeal Division (IAD). However, her daughter could make an application to the Federal Court for Leave and Judicial Review. According to the rules, a person outside of Canada has sixty (60) days from being informed of the decision (in this case the decision to remove the daughter from the application) to file an application to the court. Having said that, if the application was not strongly supported by evidence, it may be better to re-apply instead and present a stronger case. You need proper, detailed and case-specific legal advice so I encourage you to contact an immigration lawyer as soon as possible.
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My friend was approved for refugee status in Canada and became a permanent resident last year. A few months ago, he returned to China because his mother was ill, but when he returned to Canada the officer at the airport told him that he was going to lose his permanent residence status because he had returned to China. The officer advised that he was going to apply to cancel his refugee status and that he would be deported from Canada. Is this possible?
A refugee or can be determined to have ceased to be a refugee if they are found to have re-availed themselves of the protection of their country. As a person who claimed refugee status has convinced a member of the Refugee Protection Division (RPD) that they have a well-founded fear of persecution in their country, it makes sense that they would never risk returning to that country. If an officer learns that a permanent resident has returned to the country where they claimed to have a fear of persecution, the officer can begin to apply for cessation of refugee status. The application will be forwarded to the Refugee Protection Division (RPD) of the Immigration and Refugee Protection Board (IRB) where a member will make a final determination whether the person has ceased to be a refugee, based on the facts and evidence. A permanent resident who ceases to be a refugee loses permanent residence status, except under very specific circumstances, and the person will be deported from Canada. This is a very serious matter and your friend should consult with a qualified immigration lawyer as soon as possible.
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Many years ago, I sponsored my parents to Canada and their application was recently refused. The reason for the refusal is that my father originally failed to disclose that he had another child from a previous marriage. That child is already 21 years old and lives with my father’s ex-wife who has custody of him. He didn’t disclose him at first because he did not think he had to be included. I would like to know if I can appeal this decision.
Sponsors usually have a right to appeal to the Immigration Appeal Division (IAD) a refusal of a parents’ sponsored application for permanent residence. However, in very specific circumstances, the Immigration and Refugee Protection Act and regulations provide no right of appeal. In particular, where the foreign national parent is inadmissible on grounds of misrepresentation, the application for both parents will be refused and the sponsor has no right of appeal. This can be quite complicated, because if a visa officer makes an error in determining that there was a misrepresentation, the sponsor could have a right of appeal. In the circumstances you described, there may be a right of appeal depending on the detailed facts and law. If there is no right of appeal, then your parents may be able to make an application for judicial review, or attempt to re-apply in the future. You should obtain detailed legal advice from a lawyer as soon as possible to determine whether to file the appeal, apply for judicial review, or both.
