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Federal Court of Appeal

Any immigration decision may be challenged by way of Judicial Review in the Federal Court of Canada.Decision made by an Immigration Officer to refuse a visa application, or a decision of the Immigration and Refugee Board to refuse a refugee claim, can both be challenged in Federal Court.

 

The formal place that immigration appeals are made is the Federal Court of Canada. Most people choose to be represented by a lawyer at Federal Court.

Federal Court involves a two step process. The first step is to file an appeal to get leave which is done by arguing your case by filing documents with no actual appearance at the Federal Court. In order to get leave to appeal you must prove there was a serious mistake made by the visa officer at the interview. If you succeed and get leave, you get the permission of the Federal court to go to step two which is the actual appearance at Federal Court in person to argue the case.

 

A typical case would be a skilled worker or business (investor, entrepreneur, self-employed) immigration applicant who goes to the interview at the Canadian Consulate or Embassy overseas and fails the interview. The visa officer will issue a rejection letter setting out the reasons for the refusal. The applicant has a limited number of days (60) to respond and file a notice to commence a court action to appeal the case. If you miss the deadline generally you are not able to file an appeal. There are certain special circumstances and legal arguments that can be made that will allow you to continue even if you miss the deadline.

The general procedure for a Federal Court appeal is after the applicant files the Notice to start the action, the Respondent who is Citizenship and Immigration Canada (“CIC”) files an appearance confirming they will oppose the appeal. The applicant receives a copy of the visa officer’s files containing documents filed and most importantly a copy of the interview notes made by the visa officer that have been inputted into the government computer. After a review of this material the applicant will file an applicant’s court record containing the written argument, photocopies of legal cases and law supporting the argument and the applicant’s affidavit that is a written document telling the applicant’s story.

The respondent CIC is represented by the Department of Justice and they present their argument. The applicant has a chance to reply.
If leave is granted the Applicant gets to go to Federal Court to actually argue the case in person. This usually takes approximately 14-18 months from the date of commencing to appeal to get to Federal Court to argue the case in person. If no leave is granted the appeal is ended.


This means the Court can review the decision to decide whether it was lawfully made. Issues the Court will consider include whether the decision-maker acted within jurisdiction, whether the decision was fairly made, and whether the decision was reasonable in light of the evidence. It is not necessary for the applicant to appear before the Court in person, the case can be managed entirely by an immigration lawyer including any appearances at the Court.

 

If the Court decides the decision was not properly made, the case will be sent back to be re-decided by a different decision-maker. This type of appeal to the Court must be made within 15 days of a refusal made in Canada, or 60 days of a refusal made outside Canada, so it is important to act promptly to preserve your appeal rights.

Our Lawyer, has the knowledge and experience representing Clients before the Federal Court of Canada.

You can email or fax a copy of the refusal letter to our office and we will assess the reasons for any errors made by the Decision Maker and advise you whether you have grounds for Appeal. 

 

 

 

 

 

 

 

 

 

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