Federal Court Procedure:
Notice of Application
The filing of a Notice of commences judicial review proceedings Application. The Notice of Application must be served on the Respondent (Minister of Citizenship and Immigration) and then re-filed with the Court Registry after service. The Notice of Application must be filed within 15 or 60 days of the “decision” being communicated to the visa applicant. The following information is required to complete the Notice of Application:
(i) The name of the Applicant.
(ii) The name of the visa officer who made the decision. Some offices are reluctant to give out the name of the decision-maker and the signature on the refusal letter is often illegible.
(iii) The location of the visa office. Exact addresses are not necessary and the address can be described as “the Canadian Embassy in China” or the “Canadian High Commission in New Delhi” for example.
(iv) The date that the decision is made. This will usually be the date that the refusal letter is signed.
(v) The date that the decision was communicated to the applicant. The Federal Court Act provides that where a decision is sent by ordinary mail, it is deemed to have been received on the 10th day after it was mailed. It is important to advise clients to keep the envelopes in which the decision arrives because there can be a delay between the date that the letter of refusal was signed and the date that it was mailed.
(vi) The applicant’s visa office file number.
The Notice of Application must also set out the grounds upon which the Applicant is seeking to have the decision set aside.
After a Notice of Application is filed and served upon the Respondent, the Respondent Minister has 10 days in which to serve and file an Appearance. There is no special significance to this document other than the fact that if it is not served and filed on time, the Respondent has lost its right to participate in the proceedings or to be notified of further stages of the process.
When a Notice of Application has been filed, the Applicant has 30 days in which to serve and file an affidavit (or affidavits) in support of the application. The Respondent then has 30 days in which to serve and file their affidavit evidence. The Respondent’s affidavit materials usually consist of an affidavit from the visa officer or someone in the office that has knowledge of the file.
The Applicant’s affidavit must be based on actual knowledge of the Applicant. Although affidavits that are used in ancillary proceedings (such as applications for extensions of time) can be based upon belief, this is not true in affidavits in support of original actions. If an affidavit is based upon hearsay or belief (as opposed to knowledge), the Respondent can, and often does, bring a motion to have the affidavit struck out.
Many applications for leave for judicial review are based upon what occurred or did not occur during the interview with the visa officer. It is extremely important that clients, who are unaccompanied at the interview, make detailed notes as soon as possible after the interview concludes so that they will be able to furnish as much detail as possible about the interview. A lack of detail in what exactly transpired will be fatal when compared to the affidavit of a visa officer who has the assistance of detailed notes made at the time of the interview,
The affidavit must give details as to the basis of the attack on the decision. If it does not, the Respondent can bring a motion to have the proceedings struck out as not disclosing a cause of action. The more detailed the evidence, the more chance the application will have of success.
Although the affidavit must be based upon actual knowledge there is nothing wrong with statements such as “I believe that I was dealt with unfairly.” Although technically incorrect, it helps define what the issues are in the application for judicial review.
Relevant documents can and should be attached to the affidavit as exhibits. It is important that counsel in Canada receive the consultant’s entire file in order to decide which letters or other documentation should be attached to the affidavit.
More than one affidavit can be filed. If someone other than the applicant has relevant information concerning the matter (such as the consultant or a family member) then additional affidavits should be filed.
Within 30 days (can be as much as 40) of receiving the Reasons the applicant must perfect and file an application record. An application record consists of the following:
- a table of contents;
- a copy of the Notice of Application;
- copies of the affidavit or affidavits;
- a copy of the decision of the visa officer;
- copies of the contents of the file of the visa officer which include all documentation that was before the visa officer when the decision was made;
- a memorandum of legal points to be argued and a list of legal cases or authorities that are being relied upon.
After the application record has been served and filed with the Court, the Respondent has 30 days in which to file their application record. Ten days after the latter filing, the Applicant may file a Memorandum of Reply.
If leave is granted the Court produces the Certified Tribunal Record and the Applicant and Respondent have the option of filing a Further Affidavit and Further Memorandum. The Court also sets the matter down within 90 days of granting leave. These documents are critical as the legal tests for obtaining leave and successfully overturning a decision at the judicial are different. Both the Applicant and Respondent are also given a time period in which to cross-examine the deponent of the affidavit. Such cross-examinations are helpful but not always done as the cost can be prohibitive. After the Respondent’s affidavits are filed, the Applicant has 20 days in which to complete any cross-examinations.
The entire court proceeding usually takes between 6 months to a year to conclude. If successful the matter would then go before another visa officer for an interview.
Review of the immigration file, the law, including all relevant legislation and case law;
Application to the Privacy Commission; application to Ottawa for the CAIPS notes or abroad for the visa files;
To collect all relevant materials related to the client’s immigration history and assess chances of a successful application at the Federal Court of Canada;
Preparation of case strategy;
To pursue all other reasonable and appropriate appeal remedies and all work incidental thereto including the filing a notice of application, supporting affidavits, to cross-examine the visa officer overseas by telephone, collection of case law and evidence to support the case; to compose legal and factual argument; to prepare books of argument, evidence and case law .
Other unexpected circumstances are motions. For example, if the visa officer on cross examination promises a copy of a document but then does not produce a copy or is taking too long the Applicant would bring a motion at the Federal Court to seek an order to have the officer produce the document. Costs of such motions cannot be assessed at this time.
It is important to note that the process for challenging a citizenship decision is different and does not require the Court granting leave as there is a direct right of appeal.