Canadian Visa Application Refusals: Options for Re-Application and Appeal
This article provides cursory advice to foreign and domestic applicants for Canadian visas on their options for continuing to seek a Canadian visa should their application be refused by immigration authorities. In particular, the blog aims to equip rejected visa applicants with a sense of the time, costs, and complexities of various appeals and re-application processes. Please note however that Borderless Counsel currently does not provide advice on visa appeals. Furthermore the contents of this blog post are not to be construed as legal advice under any circumstances, and readers may rely on this information at their own risk.
Generally speaking, Canadian law offers two main ways to respond to a rejected visa application:
1. The applicant may either insist on the sufficiency of their application by filing an appeal of the refusal decision; or
2. The applicant may accept the immigration authority’s assessment of the defects of their application and submit a new application with suitably amended details and/or documentation.
The way you respond to a rejected Canadian visa application therefore largely depends on whether you consider legitimate the grounds for your visa refusal. For this reason, rejected applicants should always first request comprehensive details of the grounds of their visa application decision available to them under Canadian Access to Information and Privacy Act provisions.
The Act, which aims to enable individuals to access documents under the control of the Canadian Federal Government, provides visa applicants with a means of accessing notes of the officer(s) overseeing and deciding individual visa applications. This information is often referred to as the Global Case Management System (‘GCMS’) notes. While a visa refusal letter provides cursory reasons for rejection, GCMS notes include the annotations of the officer who reviewed your application as well as the outcome of every stage of the visa application assessment.
You can apply for the GCMS notes for your refused application using an agent that is a Canadian citizen or permanent resident, and there are a number of such agents available online.
Pathways after Receiving GCMS Notes
1) Re-apply
If the reasons for the refusal of your visa application are clear and seem fair or legitimate, you can submit a new visa application that amends the defects of your original application at any time (unless your refusal letter states otherwise).
Re-application requires another payment of the sum paid for the initial visa application.
2) Appeal and Submit a Request for Reconsideration
If you believe the grounds for the refusal of your visa application lack legitimacy, e.g. they fail to take into account information you provided or convey an unambiguous misinterpretation of the information, you can request a reconsideration of the decision using the Immigration, Refugees and Citizenship Canada webform. There are no fees attached to submitting this kind of request.
The webform will allow you to submit a typed reconsideration request. To increase the chances of the success of your request and ensure its efficient processing, you must express yourself concisely and courteously, as well as clearly outline critical information such as:
- The result you are seeking;
- Specific aspect(s) of the GCMS notes you are challenging (errors in decision-making); and
- Specific reason(s) and detail(s) that make your challenge compelling.
Although the process of submitting an IRCC webform appeal of a visa decision is cost-effective and seems straightforward, please note this avenue of appeal aims to rectify more obvious or less legalistic misunderstandings and disagreements. The majority of IRCC webform appeals do not succeed as errors of judgement on the part of immigration officials usually involve more ambiguous or complicated errors of fact and/or law. Another complicating factor is that it may take time for IRCC to respond, which could lead to the expiration of timelines associated with judicial review, mentioned below. Therefore, this approach should be used with caution, and in many cases, it cannot be relied on entirely as a clear path for redress.
The advice of a lawyer experienced with visa applications and appealing visa refusals might be useful at this stage in determining your chances of success and helping you frame your reconsideration request.
3) Request Judicial Review
Applicants dissatisfied with the grounds of their visa rejection may also request the Federal Court of Canada to review the decision to refuse their application.
Section 72 of Canada’s Immigration and Refugee Protection Act allows visa applicants to appeal their visa rejection decision in the Federal Court within 60 days of receiving the refusal letter if the applicant is overseas, and within 15 days of receiving the refusal letter if the applicant is already in Canada.
The appeal requires the applicant to file with or submit a document to the Federal Court for ‘leave for judicial review’. This initial document states critical information about the applicant and their request for a review of their visa refusal decision. The Court uses the document to determine whether it will proceed with a review of the visa refusal decision. Filing for leave for judicial review costs CAD$50.00.
When the Federal Court approves a request for review of a visa refusal decision, i.e. when it ‘gives leave for judicial review’, the applicant can expect the hearing to take place between 30 to 90 days (inclusive) later. You can find out more about the judicial review process for visa decisions on the Canadian Federal Court website.
The process of applying for leave for judicial review and attending a judicial review hearing will likely require applicants to complete complex or detailed forms and understand key parts of Canadian immigration legislation. It is therefore wise and not uncommon at this stage of the review process for applicants to seek legal advice on and assistance with navigating court administrative requirements and presenting appeal cases effectively in the review hearing(s).
Although the judicial review of refused visa decisions allows applicants to argue more complex cases against the grounds of their visa refusal, this appeal process is almost always considerably more costly than the IRCC webform method.