New Window of Opportunity for Challenging Immigration Decisions
March 23, 2020
By Hans John Kalina
On December 19, 2019 the Supreme Court of Canada released the decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65. The “Vavilov” decision changes the way Immigration, Refugees and Citizenship Canada (“IRCC”) will be required to process immigration applications. Particularly affected are the hundreds of thousands of temporary resident applications for visitor visas, work permits and study permits that are processed each year.
The Vavilov decision mandates the IRCC Visa Officer to write decisions of refusal that are rational, intelligible and capable of review by a court. What this means on a practical level is that the Visa Officer can no longer simply tick a box on a standard form. They must now provide reasons that are rational and intelligible. From an administrative perspective this means that IRCC will have to update its computer system to allow a Visa Officer to provide more written reasons. IRCC will also have to re-train their employees on how to use the new system. This may take anywhere from a few months to a year. The current covid-19 crisis may very well delay implementation even further. Currently IRCC relies heavily on artificial intelligence to process visa applications. Canada has pioneered a highly efficient and advanced form of artificial intelligence system to process immigration applications.
Artificial intelligence in immigration processing does not mean that computers will refuse applications. What it means is that artificial intelligence programs will assist in granting more visas. A human still makes the final decision to approve a visa. However, flagged files and subsequent refusals will still have to processed by an IRCC Visa Officer. Currently when an officer refuses an application, they simply choose a paragraph from a drop-down menu on their computer and tick a box indicating the reason for the refusal. Vavilov changes this by stating that this method of existing refusal decisions is no longer legally defensible. The negative decision is susceptible to a successful challenge in Federal Court.
So what happens when you take a negative decision to Federal Court for judicial review? The Court will review the Visa Officer’s decision and determine whether there are rational reasons that are legally defensible in light of the Vavilov criteria. Current applications will likely not meet that criteria. The visa application will then be returned back to IRCC to be assessed by a different visa officer. This provides an opportunity for the applicant to address some of the issues identified in the initial refusal and attempt to avoid the undesirable mark of a visa refusal on their record. A prior refusal would be flagged by artificial intelligence software in Canada and elsewhere in the western world that may make it difficult for an applicant to obtain a visa in the future.
The main reason that people don’t want to litigate in Federal Court is cost. Our office files many Federal Court judicial review applications. For temporary resident visa refusals, our fees will be substantially reduced for temporary resident applications during this window of opportunity while IRCC comes up with a new system for delivering reasons for refusing applications. We are able to offer a low block fee by taking advantage of our technological expertise and experience. Where the applicant resides outside of Canada, they have 60 days in which to file an application for Judicial Review. If the applicant resides in Canada the deadline to file an application is reduced to only 15 days. Our advice is to shorten the timeline by filing the application to lock-in the right to recourse to the Federal Court by opening a Federal Court case as soon as possible.
Applications for Judicial Review can be issued electronically using the Federal Court’s website. Once issued, we serve the Department of Justice and file the proof of service in Federal Court. We charge one all-inclusive low fee of $400 for this initial step that includes the our fee, the court fee, disbursements and taxes. Once the application is locked-in, we send the applicant or a person with personal knowledge of what was submitted to the visa officer an Affidavit to be notarized. We prepare the Affidavit, the person gets it sworn, and then e-mails all pages of the Affidavit back to us. We do not need the original, so there is no courier cost. This allows the applicant to send us the Affidavit with the complete application so that it can be put before the court as soon as possible. The reasons for the decision are usually provided to us in 20-30 days. We then examine the reasons to determine whether there exists a legal ground to continue the litigation. If the applicant elects to continue the litigation, then an additional all-inclusive ‘all-in’ block fee of $5000 which includes legal fees, disbursements and taxes will be required.
Although we have 30 days to file the application record which is between 75-100 pages long, we are usually able to file this within a few days. Our extensive library of precedent material allows us to complete the legal memorandum of fact and law quickly. There are many very formal rules involved in preparing the application record. This is the most crucial step in the entire process. Once the application record has been served on the Department of Justice and filed with the Federal Court, the Department of Justice has 30 days to file their response. We have 10 days thereafter to file a reply. With temporary resident applications, we are very often able to convince the Department of Justice to consent to have the application remitted back to IRCC for a different visa officer to assess. If they do consent, a notice of discontinuance is filed and the litigation is closed. If the Department of Justice does not consent to the application, the Federal Court will then go on to determine whether to grant ‘leave’ to hear the case in court. This may take a few weeks or even few months.
Please note that a successful litigation does not necessarily mean a visa will issue. There is never a guarantee that a visa will issue. Canadian immigration law and policy may change at any time with no notice and with retroactive effect. The Applicant takes this risk at all times. A successful litigation means the refusal is cancelled, and a new IRCC visa officer takes over the case, but the new officer may find a new reason to refuse the application. That is always a risk, in every case.
How long the application takes to be processed once it is sent back to the IRCC visa office will depend on the location of the visa office. If may be a few weeks or a few months. For example, New Delhi usually processes the new application in 8-12 weeks, while Dubai often takes 6-9 months. However, during this time, the applicant has the opportunity to file additional material to overcome the reason for the initial refusal. This is crucial and provides the applicant with a chance to get the right material before the decision maker.
If your application has been refused, there is no charge for us to take a look at the decision and documents that were submitted application to determine whether Federal Court is an option for you. Please send any inquiries to [email protected]
Hans John Kalina is a lawyer with the Law Office of Kalina & Tejpal. He can be reached at 416-900-6999 or at [email protected]