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Appeals
Program Overview:
If your immigration application is refused, you have some options depending on your status and the type of application you submitted. You can reapply, apply for judicial review or appeal.
REAPPLICATION
If your Canadian visa application is refused, it is possible to reapply again. However, before reapplying, it will be a good idea to know the reason for the refusal, so you are able to address it in a subsequent application. The real reason for visa refusal is not usually contained in the generic refusal letters. To know why your visa application got rejected, you have to apply for the visa officer’s note, often called ‘GCMS Notes.’
The GCMS is the Global Case Management System used by the Immigration, Refugees, and Citizenship Canada. The GCMS notes help you know the status of your application and make you understand the reason for the refusal of your application.
To be eligible to send a request to Immigration, Refugees and Citizenship Canada (IRCC) under the Access to Information Act (ATI), you have to be a Canadian citizen, permanent resident or an individual or corporation currently in Canada.
If you are not a Canadian citizen or permanent resident, you can hire a representative who is a Canadian citizen or permanent resident to assist in requesting the information.
The request can be made online or by mail. However, it is faster to complete the request online.
To make the request, you will need information from your application, such as your details, the application number, consent form (applicable if hiring a representative), a copy of your government-issued identification in Canada and a payment fee of $5.00.
The Standard processing time is 35 business days.
Once you receive the GCMS note, review it to understand why your application was refused and address the issue when next you apply to increase your chances of your visa being approved.
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JUDICIAL REVIEW
Judicial review is how courts review the decisions made by administrative bodies or the government to decide whether the exercise of discretion was appropriate and whether the procedure was fair. The Immigration and Refugee Protection Act (IRPA) provides a judicial review by the Federal Court concerning Canada immigration decisions. Most foreign nationals who submit temporary or permanent visas outside of Canada do not have the right of appeal but can apply for judicial review if their application is refused.
To apply for Judicial review for immigration and refugee protection matters, the applicant must first obtain leave or permission from the Federal Court judge.
The application for leave for judicial review must be filed within 15 days of the visa officers or decision-maker decisions if the application was made in Canada or filed within 60 days of the visa officer’s decision or decision-maker decisions if the application was made outside of Canada.
If the application for leave is successful, the court will proceed to an oral hearing of the judicial review application. If the Court dismisses the leave application, the application for judicial review is also dismissed and the file will be closed.
Suppose the application for a judicial review at the Federal Court is successful. In that case, the Federal Court may overturn the Visa Officer/decision-makers decision, set aside the original decision or order a redetermination of the applicant’s visa application by a different visa officer or decision-maker.
It is advisable to seek professional advice if apply for judicial review because court proceedings can be complicated. Learn more about how to apply for judicial review.
APPEAL
The Immigration and Refugee Protection Act (IRPA) allows certain applicants whose application has been refused or rejected and have the right of appeal to appeal the decision. A sponsorship application denied and a refugees’ claim rejected may be appealed to the Immigration Appeal Division (IAD) or to the Refugee Appeal Division (RAD). The IAD and RAD have the jurisdiction to determine the question of law and facts in relation to the appeal. If the appeal is successful, they can set aside the immigration application’s decision or substitute the decision with their own determination of the matter.
There are time limits for filing appeals. An appeal may be refused if not filed within time.
Type of appeal | Time Limit to appeal |
Sponsorship appeal | 30 days from the date of refusal |
Removal Order appeal | 30 days of receipt of the admissibility hearing |
Residency Obligation | 60 days from receipt of the decision |
Data Source: Canadian Immigration and Refugee Law for Legal Professionals by Lynn Fournier-Ruggles
It is advisable to seek professional advice if appealing a decision of either the IAD or RAD.
References
- How to make a request under the Access to Information Act – Canada.ca
- Federal Court – How to file an Application for Leave and for Judicial review (Immigration) (fct-cf.gc.ca)
- Judicial Review: Federal Court decides to allow the application – Canada.ca
- Judicial review in Canada – Wikipedia
- Canadian Immigration and Refugee Law for Legal Professionals by Lynn Fournier-Ruggles
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