Debating or Reopening a Refused Immigration Decision: Russian Roulette?
By Author: Admin | June 7, 2010
I have come across some immigration forum websites where people attempt to file their own immigration cases asking for advice from those forums. This works for but a small minority of applicants whose cases can be characterized as ‘smooth as glass’ – e.g. they work in a high level position for a multinational company in an occupation that is in demand. I think such immigration forums are useful for some guidance, but only if that guidance is corroborated by an experienced immigration lawyer trained in the relevant laws of Canada.
For the majority however, doing one’s own application can be somewhat like performing surgery on yourself. I have often come across persons whose visa application were refused and did not seek professional advice. They instead opted to challenge the immigration officer’s refusal by submitting more evidence after the case was refused. This is wrong for many reasons, but the main one is that almost no visa officer will consider new evidence after the refusal owing to the doctrine of functus officio – the doctrine that a decision maker has no authority to reopen the decision.
What most immigration officers do when confronted with a request to reconsider the application is to reply with a courtesy response, which almost invariably contains the following text:
This letter is in response to your letter of xxxx 2010 , regarding your application for permanent residence in Canada.
Your application was carefully considered according to the applicable section of the Immigration and Refugee Protection Act . You were provided with the decision containing the full reasons for refusing the application by letter addressed to you dated 22 January 2008, thereby fully concluding the application. The file was closed on that date.
Should you have different or additional information, you may wish to submit a new application for permanent residence in Canada along with new cost recovery charges.
Designated Immigration Officer
Many clients come to me after their unsuccessful attempt to reopen their Canadian visa application, with a letter similar to the one above, in hand. By trying to reopen the application and receiving a ‘courtesy response’ (as the above letter is known), they have wasted time, and in some cases, have missed the deadline for filing an application for judicial review at the Federal Court. Most clients don’t know that the receipt of a ‘courtesy response’ does not create a new refusal letter upon which a case to the Federal Court of Canada may be filed; the time limit starts from the first refusal letter.
What can be done after committing the error of debating with a Canadian visa officer unsuccessfully? In some cases an extension of time to file judicial review can be made at the Federal Court of Canada. In other cases, some client have been lucky enough that the letter they received in response to a request to reopen a Canadian visa application was not a ‘courtesy response’, but rather a substantive response that actually considered the new information filed by the client post-refusal, but refused it nonetheless. Such letters may actually constitute a new decision upon which a Federal Court case can be built.
Why do most officers issue ‘courtesy responses’? Are they lazy? Are they mean? The main reason is time. The work load at Canadian immigration offices in Canada and Canadian visa offices outside of Canada is notoriously excessive; it is not fair to the other hundreds of thousands of applicants for a visa officer to consider new evidence in a case that was refused, especially if the client was given sufficient time to file proper evidence before the Canadian visa application was concluded. A visa officer can’t play tennis with an application in perpetuity (i.e. lobbing an application back and forth between an officer and an applicant); there has to be finality to all applications for visas to Canada.
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