Resolving the refusal of Canadian visa in court

Resolving the refusal of Canadian visa in court, Steps After a Visa Refusal

You might think that if your visa application has been rejected, then you shouldn’t consider Canada anymore. But if there’s no major flaw in your case and you’ve been wronged, there’s a good chance you can challenge that visa refusal through the Canadian court and get your visa.

There’s a lot of hope in despair!

How can you appeal a Canada visa refusal?

If your application for a Canadian visa has been denied or “rejected”, don’t worry. This isn’t the end of the road. After your Canadian visa application is rejected, there are several steps you can take.

Actions after the visa is rejected include:

Fixing issues in your case and reapplying for the visa

Appealing to the Canadian immigration office by submitting a reconsideration request for the visa

Filing an appeal in the Federal Court of Canada

Taking your case to court is one of the most effective actions after your visa refusal, and in this article, we’ll outline the conditions and steps involved.

What is court? Why court?

If your visa application has been denied by the Canadian embassy, you may have heard that some applicants have taken their visa cases to court for reconsideration and then ended up getting their visas. Court refers to a judicial body, but when we talk about taking a case to court, we usually mean the Federal Court of Canada. But isn’t court a place for complaints? Why should a visa case go to court?

The answer is simple: referring your case to court is one of the most effective actions after a visa refusal. This is because applicants wish to appeal the decision made against their visa application by filing a complaint against the Canadian immigration office. When you realize that there’s been a mistake in your case review by the officer or feel that you’ve been wronged, you can take your case to the Federal Court of Canada and ask the judge to review the case. Of course, it goes without saying that you must have sufficient and logical reasons for this.

Usually, the issues raised in the case review fall into three categories:

1. Reasonableness

2. Fairness

3. Error in Fact or Law

Conditions for Appeal in the Federal Court of Canada

To challenge a visa refusal in Canada and appeal in court, you actually need to have a solid argument for your defense, and your case must be structured in a way that it can be defended. If you submit your case to Canada’s immigration office again after a rejection and after understanding the reasons for the visa refusal, without fixing its issues, you are very likely to be rejected again. Therefore, filing a complaint in the Federal Court of Canada for such a weak case will not be fruitful.

Before you appeal your visa refusal in court, you should take the following steps.

To learn more about the reasons for your visa refusal , request the case note or visa officer’s notes from the Canada Immigration Office.

If the reasons for your Canadian study visa refusal are related to document deficiencies and the failure to present a suitable scenario for the visa, to the point that the officer is not convinced you will return to your home country after your studies, do your best to rectify the issues in your case and resubmit your visa application.

If you are rejected again despite fixing the issues, consider this rejection as a “good rejection” because now you have the opportunity to defend it in the Federal Court of Canada.

The basis for a good rejection is grounded in reasonableness, fairness, and error in fact or law. This means that the officer did not act reasonably and fairly in reviewing the visa case or made an error in the decision.

Example 1: You have shown sufficient ties to your home country for the Canadian study visa, but the officer rejected you due to lack of sufficient ties to your home country (Reasonableness).

Example 2: The officer rejected you for being single (Fairness).

Example 3: The officer incorrectly stated the name of the program you’ve been accepted into and rejected you for it being unrelated to your previous level of education (Error in Fact).

Who defends you in court?

Only two people can defend your case in court:

1. You

2. Your lawyer

If you take the initiative yourself, you certainly know that you will have to deal with expert immigration lawyers. So, it’s not going to be an easy task.

So you’re probably going to need a lawyer. The type of lawyer I’m talking about isn’t just any consultant or immigration agent from Canada (RCIC), or a lawyer who practices in Iran. The person who can take your case to court must be a legal lawyer and a member of the bar association in one of the provinces in Canada.

Now, official immigration consultants can represent you in the Immigration and Refugee Board (IRB) and defend you, but when a case goes to the Federal Court of Canada, that’s a different story.

Steps to appeal and address a rejected Canadian visa in court:

The Federal Court of Canada has recently announced a project called the “Study Permit Pilot Project,” starting on October 1, 2024, to streamline and speed up the review of rejected study permit applications. With this method, the process for addressing a rejection in court could take as little as 5 months, while it usually takes between 14 to 18 months.

1. Your visa has been rejected.

From the day your visa application result is issued, if you are in Canada, you have 15 days, and if you are outside of Canada, you have 60 days to start the court process. However, in special cases, the judge may allow an extension.

2. Your case is filed in court.

The first step is to file for leave in court. Leave here means permission to enter the court with the judge’s consent. This means we want to show our visa documents to the judge and see if they agree that the case is eligible and worthy of entering the court.

If the judge agrees, they issue this permission, and that’s when we say: “Leave is granted.”

3. The immigration department sends the reasons for the rejection to the court.

The parties in this legal case are you, the applicant, on one side, and the Immigration Department (read: the Minister of Immigration) on the other side, who is referred to as the respondent in court. Let’s not forget that the Immigration Department has a lawyer just like you do.

Within 10 days of the case being filed, a notice is sent from the court to the Immigration Department, and they are also given 30 days to submit their reasons for rejection.

4. Your lawyer submits the defense.

After receiving the reasons for rejection, your lawyer has 30 (+10) days to submit their documents, including the defense.

Canada’s legal system follows the common law tradition from England, and in common law, new decisions are based on the outcomes of earlier cases that have been brought to court.

In a detailed defense, your lawyer will challenge each of the officer’s reasons for rejecting the case based on similar cases that have been successful in court before yours, ultimately asking the judge to allow the case to be heard and to set aside the officer’s decision.

5. The immigration department may respond to your defense.

Sometimes, within 30 days of submitting your lawyer’s defense, a response from the Immigration Department will be sent to the court.

In fact, the Immigration Department’s lawyer will carefully review the case, read your lawyer’s defense, and if they find any weaknesses in the submitted documents, affidavit, or defense, they will highlight it and try to convince the judge that the case lacks the necessary qualifications.

In this case, it’s best for your lawyer to provide a convincing response to that lawyer’s challenge within 10 days, so you have the final word, not the Immigration Department.

6. Your lawyer replies to the immigration department's response.

If a response comes from the Immigration Department, your lawyer has 10 days to respond to that challenge.

7. The judge makes their decision.

Then the judge will begin the initial review of the documents and will announce their opinion regarding allowing the case to proceed to court.

1.7. The judge allows entry into the court.

If the judge allows the case to be heard, they will set a date for the hearing: usually between 30 and 90 days after granting leave.

2.7. The judge finds your case to be without jurisdiction.

Of course, the judge may also determine that your case does not qualify to proceed to court and declare it closed.

8. A hearing is held.

In the hearing session, the judge listens to both sides’ arguments and then makes a ruling in favor of you or immigration.

The hearing session, which typically takes place about 30 to 90 days after granting entry to court, lasts around 90 minutes. The main difference between a hearing and a settlement is that the details of the hearing are recorded and then made public. For example, you can find similar cases on the Konnelly site and see what the outcomes were.

More importantly, in the Canadian legal system, the results of previous cases serve as a basis for reviewing new cases. So, if there’s something new in your case, it might pave the way for winning similar cases.

1.8. The judge rules in your favor.

You move on to step 9.

2.8. The judge rules against you.

Case closure. In this instance, you can file your request to enter the appeal court. The same federal court process will be repeated, and under specific circumstances, it can even reach the Supreme Court.

Between steps 2 and 8: Possibility of settling the case.

Between steps 2 and 8, the likelihood that your case gets settled and goes straight to step 9 is very high.

Settlement means a compromise or agreement between the parties, and it’s usually an offer made by the responsive party (immigration) to the applicant (you). This offer can be made from the day your lawyer files your case until the hearing or “hearing” date, but this is usually done after your lawyer submits a defense. Especially if a good defense is written for you and the immigration lawyer concludes that you will win in the end while the immigration department will lose.

In fact, the settlement offer is a win-win situation because it saves you months of time and also avoids a loss being recorded for immigration. If you accept the settlement proposal, the case gets settled and returns to immigration for review just like when you’ve won.

Of course, you can always choose not to accept this offer, but typically, there’s no good reason to decline it unless you’ve accepted it once before and your case was rejected again. When you accept this offer, you are essentially withdrawing your complaint.

9. The case is referred to the immigration department.

If the vote is in your favor, your case will be reviewed again, this time by a different officer, and the outcome will be communicated to you just like a new case.

10. The immigration department requests your updated documents.

Usually, after you win or accept a settlement offer, your profile will change from Refused to Your Action is Required. Essentially, you’ll typically receive a request from the immigration office asking you to update your documents.

In this request, you’ll need to upload some or all of the following documents within 30 days in the system:

– Updated Letter of Acceptance (Updated LOA)

– Updated proof of financial documents

– Any other document that has been updated or any changes in your circumstances

11. Final result.

After you upload the documents and they are reviewed by a new officer, your visa outcome will be announced. If you provide the documents correctly and completely, you will usually receive a positive response.

If your case is rejected again, or colloquially “dismissed,” you have the option to submit your case again or re-enter the court.

Addressing a Canadian tourist visa refusal

If your Canadian tourist visa has been rejected, there are still steps you can take to address the rejection. So, don’t lose hope!

1. Find out the reasons for your case rejection

In the rejection letter or the officer’s case note, you can find out why your case was rejected. Common reasons for a Canadian tourist visa rejection include:

– Insufficient funds to cover travel expenses

– Weak financial situation of your inviter

– The purpose of the trip being unconvincing to the officer, leading them to believe you intend to stay long-term in Canada

– Your travel history or previous travel record

– Lack of a clear and specific trip plan

– Incorrect or incomplete submission of documents and forms

– Your ties to your home country

2. Act through reconsideration, resubmission or court to address the rejection

To choose the best way to address your case rejection, it’s advisable to consult with immigration advisors or official lawyers in Canada. Generally speaking:

If you think the officer made a mistake while reviewing your case, you can submit your objection as a reconsideration to the immigration office.

If your case needs strengthening, you can send additional documents for resubmission to the Canadian immigration office.

In some cases, you can take your case to court and defend it there.

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Frequently asked questions

How long do you have to take your case to court in Canada?

If you are outside Canada, you have 60 days, and if you’re in Canada, you have 15 days to act. So hurry up.

How long does the case review process in court take?

According to information published on the Federal Court of Canada website, the average processing time for visa rejection appeals is between 14 to 18 months. However, according to Canada’s new law regarding the “study permit rejection pilot program,” this timeframe is expected to be reduced to 5 months.

If your case review experiences unreasonable delays, you can use a mandamus order in court.

What is the cost of a court case in Canada for visa refusal?

The application fee for filing a case in Canadian court is $50.

This amount does not include the cost of hiring a legal representative. In general, lawyers’ fees in Canada are high. By providing special conditions for Iranians, we have helped hundreds of applicants successfully navigate this critical stage of their lives.

Can I add documents to my submitted materials in court?

No, the only documents presented to the court are the same ones submitted to the immigration office. Only a sworn statement is added to these documents.

Can only study visa refusal be taken to court?

No, all types of rejections can be challenged in court.

If I win in court, will my visa be issued?

No, in this case, your file will be reviewed by another officer. However, the chances of obtaining a visa significantly increase.

Can immigration consultants defend me in court?

No, only legal representatives can defend you in court.

How long after winning in court or settling does my case get processed by the immigration office?

There is no specific timeframe for reopening a case. It can take anywhere from 2 weeks to 3 months, but on average, it takes about a month.

Who can participate in the hearing session?

Typically, hearing sessions are open to the public.

How can I stay updated on my case?

Once filed, you will be assigned a case number. You can use this case number or your name to search for your file in the court’s results section and see updates. Keep in mind that this site usually updates a few days later.

What are my chances of winning in court?

If you send a good case to the court, your chances of winning are high.

Does a court settlement guarantee that I will receive a Canadian visa?

No, settling a case does not necessarily mean a visa will be issued. After the settlement stage, Canada’s immigration office will ask you for updated documents. If you submit the documents exactly as requested, the chances of obtaining a visa are high.

After settling the case, what documents does Canadian immigration require?

Usually, after the settlement of your case, Canada’s immigration office will ask you for a series of updated documents, which include:

Proof of financial ability and six months of bank statements

Tuition fee statement and receipt of tuition payment for one academic year

Updated admission letter for the upcoming academic term

Do I need a lawyer to take a visa refusal case to court in Canada?

No. However, when the judge sees that the case has been submitted by a specialized and professional person and that there is a legal defense on the file, the likelihood of reviewing that file more carefully and seriously increases.

What flaws in a visa case might lead to it being rejected in Canadian court?

If the case has a valid document or if it is objected that the officer has already been raised as a rejection case in Casenet and is not continued, the case may also exist in the court.

Can I empty my bank account during the court process?

Since the Canadian Immigration Department will ask for updated financial documents after your visa case is reactivated, we recommend that you never empty your account.

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