Don’t take no for an answer

Don’t take no for an answer

CANADIAN IMMIGRATION NEWS AND VIEWS

Every day thousands of decisions are being made by officers on behalf of Citizenship and Immigration Canada both inside and outside of Canada. Not all those decisions are going to be positive and that means a large number of people are going to be disappointed including foreign applicants and often their Canadian sponsors and families. But, how do you know when a “No” is really no and what can be done about it? Not all decisions are final.

While most officers are quite hard working and do their utmost to execute their responsibilities, most are also far too over-worked and under-resourced to ensure that all decisions good ones. Sometimes cases slip by where they have made a mistake. Perhaps they have not considered all the important information or perhaps they have not applied the rules properly. Sometimes cases are refused when all the circumstances have not been fully explained by the applicant and this too can lead the best of officers to the wrong conclusion. In all these cases it may be possible to appeal the wrongful decision.
When most people think of an appeal they think that simply writing a letter to the officer who made the decision or to their supervisor is sufficient. Many years ago, that might have been the case but more recently it is more likely that once the decision is made, another officer or the supervisor will not change the decision unless there has been a very clear error.

An appeal is a set process by which a case may be examined under specific guides and rules to determine whether there was an error in fact or in law or in mixed fact and law and sometimes may even consider all the circumstances of the case, and, despite the decision being legally sound, a negative decision can turned around; the application allowed to proceed.

There are appeals to the Federal Court of Canada and to the Immigration and Refugee Board. While writing to the visa officer or immigration officer may be something you want to try, you should pay very close attention to the time that passes since appeals to these authorities have time limits and if you do not apply on time, you may lose a real chance at getting your decision turned around.

In fact, most negative decisions can be appealed to the Federal Court of Canada. However, negative decisions are not always bad decisions and proper counsel should be sought before pursuing a leave to appeal to the Federal Court. This method can be costly and time consuming and in many cases is unsuccessful. Further, even when an appeal to the Federal Court is successful, the best result is that another officer will review and make a decision on your case. While the Federal Court can offer relief in some cases including trying to obtain a stay of an order in addition to reviewing negative decisions, this route requires analysis by experts at these kinds of processes.

However, for many cases there is another way that is not so onerous but still requires specialized help by certified consultants or lawyers who do this work frequently. There is an appeal to the Immigration and Refugee Board for certain types of applications such as refusals of applications to sponsor members of your family, for permanent residents who have been out of Canada for more than the prescribed time and for permanent residents who have been issued removal orders because they may have committed a crime or have made a misrepresentation and are now being deemed inadmissible. That is right, permanent residence is not as permanent as you may think.

The Immigration and Refugee Board (IRB) is Canada’s largest independent administrative tribunal making over 50,000 decisions each year. Of course, not all those 50,000 decisions are positive either and that is why it would be a good idea to have competent counsel at these proceedings. You should use a certified immigration consultant or a lawyer who are familiar with these proceedings.

Appeals at the IRB are handled either by a process called Alternative Dispute Resolution (or Appropriate Dispute Resolution as some like to call it since it seems to be the right way to handle a fair number of appeals) ADR or, traditionally, a full hearing. Each process has a defined set of rules and procedures to follow to ensure that the process is handled fairly and efficiently. Through either process decisions can be examined and in light of all the facts and circumstances.

These days the process can be somewhat lengthy but the advantage is that your no can be turned into a yes. With proper preparation and presentation it may be worth the effort. So, don’t take no as the answer. Get a seasoned professional who is experienced in appeals to look at your case.

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Have a question? Send them to Berto Volpentesta or to the editor at: (416) 398 8882 or (416) 787 0612 or by email at berto@canneximmigration.com and on the web at www.canneximmigration.com