FAQ for clients seeking judicial review of refused immigration officer decisions
By Author: Admin | October 26, 2009
|I recently had a client who retained me after his skilled worker application was rejected. Because his initial queries prior to hiring me were quite comprehensive, I think they can be used as a sort of ‘FAQ’ regarding the federal court and Canadian immigration matters. A summary of the use of federal court is available under the ‘services’ section of my website.
I would like to see the refusal letter and any supporting documents that tell your side of the issue. For example, if the refusal is about work experience, then a copy of the documents you submitted in support of your score for work experience would be helpful. In other words, the documents that the officer reviewed prior to making the decision would be required. Other questions this client asked were as follows (after taking away any personal aspects about his case).
How many days are allowed before the time for judicial review has expired? 60 days from the date of receipt unless the decision was made inside of Canada in which case the due date is 15 days from the date of the receipt of the decision.
How long it will take to have a decision? Judicial review of immigration decisions can take between 4-12 months from the start of the case.
What are the prospects to win my case as per your knowledge and the laws of Canada such as IRPA? This depends on how the officer has treated the case, as reflected in his notes, as well as the material that was submitted in support of the application. If there was an interview, then the responses at that interview are also considered. Normally, an experienced lawyer can review these and determine the chances of success. On some occasions, where there is a gap in the law, or a novel situation, the lawyer may not be able to rely on previous cases to gauge the chance of success clearly.
If the judicial review is won, will I have to go through another medical and police check? A successful federal court case will lead to a reassessment which will likely require a new medical and background check.
If my application has been taken to the federal court, can I simultaneously make a new application? There is no restriction on filing a new skilled worker case despite the pending federal court case.
Is there any alternative for me to acquire permanent resident status in Canada.? In certain cases, a request for reconsideration may be successful by contacting the visa office where the refusal was issued. If your case is deemed not suitable for a challenge at the federal court, you may wish to see if you can secure a job offer in Canada that is approved by Service Canada, as this would increase the points scored under the current federal skilled worker selection grid. You may also wish to reference the many provincial nominee programs which have varying levels of skill in relation to the English language.
Can you take my refused immigration case on a ‘no win no fee basis’? Because lawyers cannot own a piece of your visa and because federal court work (like any litigious process) is inherently lawyer-intensive, there are no contingency fees for federal court. There may however, be cases which have fee payments spread out over time.
As a federal skilled worker can I apply for judicial review straight way? No, the process for judicial review of federal court cases requires ‘leave’ or permission. The permission is based on the statement of fact, supporting affidavits and legal memoranda of the lawyer for the government and your lawyer. Once the judge reviews these papers, then she may decide to grant leave and then formally hear the case.
I have not received some documents back from the Canadian High Commission. Can you get them for me? We can apply to obtain a copy of your entire file for an additional fee.
Will I need to obtain the CAIPS notes before my federal court case is started? No, as the court procedure can obtain some of the CAIPS notes. Sometimes, however, it is a good idea to apply to get the CAIPS notes through another government office as these may be more detailed.
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