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Visa refusals


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If your temporary visa is refused...

If your temporary visa is refused...

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  • 1. Canada Temporary Resident Visa Refusal What is a TRV (Temporary Resident Visa) ? Student, Visitor or Work permit A Temporary Resident Visa (TRV) is an official document issued by a Canadian visa officethat is placed in your passport to show that you have met the requirements for admission to Canada as a temporary resident (either as a visitor, a student, or a worker). Can you do anything if your visa is refused ?10/14/12
  • 2. Can I appeal a visa refusal ?Under Canada’s Immigration and Refugee Protection Act, there is no formal right of appeal ontemporary resident visa decisions. Rather, the applicant may reapply and, whenever possible, adifferent visa officer will examine the application.An applicant may also seek leave through the Federal Court of Canada to request a judicialreview of any decision made by a visa officer, if he or she believes that the process was notlegally or procedurally fair. A lawyer in Canada would have to act on behalf of the applicant.The formal mechanism to appeal a negative decision of a visa officer is a judicial process ofreview through the Federal Court of Canada. 10/14/12
  • 3. Canadian Immigration law regarding temporary visa evaluationRead the Law >> section A 22 (1)Temporary residentA 22. (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b) and is not inadmissible. Dual intent (2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay. 10/14/12
  • 4. How much Discretion can a visa officer use ?IRPA Law section A 22 (1)There is no doubt that a TRV is highly discretionary (Read P.S below). The visa officer has tomake evaluation on what he/she thinks about your non immigrant intent and ability to satisfy theconditions on the visa once you are in Canada. The application process and the decision must meetthe standards prescribed by law. The applicant on being unsatisfied can apply for judicial review ofthe process.------------------------------- P.S Discretionary decisions of visa officers have attracted a high degree of deference in the past and that such deference continues to be appropriate: Dunsmuir at paragraph 53; Li v. Canada (Minister of Citizenship and Immigration) 2001 FCT 837 (CanLII), 2001 FCT 837 at paragraph 11; Bellido v. Canada (Minister of Citizenship and Immigration) 2005 FC 452 (CanLII), 2005 FC 452 at paragraph 5; and Hua v. Canada (Minister of Citizenship and Immigration) 2004 FC 1647 (CanLII), 2004 FC 1647 at paragraphs 25-28 (Hua) 10/14/12
  • 5. Apply to the Federal Court of Canada for judicial reviewUnder Canada’s immigration law, you can ask the Federal Court of Canadato review decisions related to immigration. A lawyer must apply for judicial review on yourbehalf.Review by the Federal Court is a two-stage process. In the first stage, which is known as the“leave” stage, the Court reviews the documents related to your case. You must show the Courtthat an error was made in the decision, or the decision was not fair or reasonable.If leave is given, this means the Court has agreed to examine the decision in depth. At thissecond stage, called “application for judicial review,” you and your lawyer can attend an oralhearing before the Court and explain why you believe the original decision was wrong. 10/14/12
  • 6. What is the power of Federal Court of Canada to intervene in visa process ?Powers of Federal Court(3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal (including Minister of Immigration/Visa Officer) to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. PS Words in italics are mine and not of the law 10/14/12
  • 7. What are the grounds of review for the Federal Court of Canada ?Grounds of review(4) The Federal Court may grant relief ....... if it is satisfied that the federal board, commission orother tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. 10/14/12
  • 8. Lets look at the reasons how the Court intervened and set aside the Visa Officers decision • Dual Intent • Use/abuse of discretion • Breach of Natural Justice • Fairness • Unreasonableness • Ignoring of relevant factors10/14/12
  • 9. Lets look at the reasons how the Court intervened and set aside the Visa Officers decision Let us look at one of the factors • Dual Intent What is dual intent ? If you have applied for a permanent immigration application which is pending and meanwhile you apply for a temporary visit visa can the visa office assume you that your purpose of travel is not temporary ? The law says NO. Even if the Visa Office has concerns as to whether the Applicant might hypothetically have the intention of remaining in Canada permanently, such intent is not a barrier to his entry as a temporary resident/student provided he would leave Canada at the end of his authorized stay. Recent changes to the immigration legislation regarding post-graduate work, permits for students, and the creation of the Canada Experience Class demonstrate that immigration authorities actually encourage foreign students to remain in Canada permanently. Therefore, the concern is not whether or not a student visa applicant will want to obtain permanent residence in Canada, but whether they will remain in Canada illegally without status or beyond their authorized stay. 10/14/12
  • 10. Some Dual intent cases where the Court intervenedDual Intent Cases 1. Odewole v Canada. Visa Officer acknowledged that she lacked jurisdiction to assess the applicant’s eligibility for permanent residence under the family class sponsorship, she nevertheless took this factor into account, as evidenced by the above summary of the factors cited by the Officer. Thus, the Officer committed a reviewable error. 2. Moghaddam v Canada Application for permanent residence was irrelevant to the assessment of the Applicants application for a study permit and that by referring to that independent application, the Visa Officer may have relied on extraneous considerations. The court set aside the refusal and asked for a different visa officer for redetermination. 3. Ogunfowora v Canada "..the person’s desire to work, study or visit in Canada before or during the processing of an application for permanent residence may be legitimate”. Thus, an intention by a foreign national to become a permanent resident does not preclude an individual from becoming a temporary resident..... But in order to satisfy himself the officer must look objectively at the request and all the supporting information; he should not, as he obviously did here, decide subjectively, and ignore what favors the applicants.10/14/12
  • 11. Did the visa officer breach the duty of fairness ? One more factor of visa appeal/judicial reviewDuty of fairness 1. Zheng v. Canada (Citizenship and Immigration), 2008 FC 430 (CanLII) . It was unfair of the Visa Officer not to give the Applicant an opportunity to clarify the situation at hand . Thus, the Officer committed a reviewable error. 2. Mekonen v. Canada (Citizenship and Immigration), 2007 FC 1133 (CanLII) ....The officer failed to provide Mr.Mekonen with copies of documents that the officer had obtained and considered in making his decision, and by failing to afford Mr. Mekonen an opportunity to comment on the information contained within those documents. 3. In two more cases, Haghighi v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17143 (FCA), [2000] 4 F.C. 407 (C.A.), and Canada (Minister of Citizenship and Immigration) v.Bhagwandass, 2001 FCA 49 (CanLII), [2001] 3 F.C. 3 (C.A.), the Federal Court of Appeal considered whether an officer was required by the duty of fairness to disclose for comment to the person affected by the officer’s decision a report received by the officer. 10/14/12