You’ve applied for a visa.  It may be for a study or work visa or for permanent residence.  It gets refused.  What do you do? If you’ve hired an immigration  consultant, they should advise you that you have an option for judicial review at the Federal Court.  Some will not and will opt to debate the merits of the refusal.  This course of action is risky, particularly if the refusal is based on the officer’s discretion to refuse.   Although officers have to be reasonable, the definition of ‘reasonable’ is not in accordance with the colloquial meaning of that word.

The main definition of reasonable is whether the decision “ within the range of reasonable outcomes and the reasoning process was comprehensible, it ought to be upheld despite apparent logical flaws.”

In a case where, for example an officer has considered the evidence filed by a client in relation to something subjective such as a Humanitarian & Compassionate case, debate of a refusal is unlikely to lead to the overturning of said refusal. Similarly, where a client has filed a vague work reference  letter and is asserting they have experience in a certain job, an officer is at liberty  to refuse  the application.

 

One preferred approach would be to go both to Federal Court and debate the refusal at the same time.      Such a ‘two-pronged’ approach was counseled by Mr. Justice Rothstein (As He Then Was) of the Federal Court  in the case of Soimu.  He indicates that applicants must be prudent to protect their rights to judicial review by proceeding in a timely manner:

[para11]     I should observe that the procedural difficulty occasioned in these proceedings might have been avoided if the applicant had sought judicial review of the February 8, 1994 decision in a timely manner

Soimu v. Canada (Secretary of State) Action No. IMM 2551 94  Federal Court of Canada   Trial Division Toronto, Ontario Rothstein J. Heard:  September 12, 1994, Judgment:  September 13, 1994

Why Not Do Both?

Why Not Do Both?

His Lordship added that the proper approach would be to seek both a review from the visa office, and judicial review at the same time. Some officers either ignore requests to reopen the refusal , or issue a negative reply in a late timeframe, a timeframe that would make the refusal too late to seek judicial review.  The time frame for judicial review is 15 or 60 days from the date of the refusal, depending on the location of the officer who rendered the refusal.

If you’ve received a refusal you should be aware of the time limit in which to proceed to federal court and obtain advice from a Toronto Immigration lawyer.   Chaudhary Law Office is a firm with a significant amount of success in overturning refusals of visas at the Federal Court.

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