Has your Canadian immigration application or appeal been refused? Do you want to challenge the decision to the Federal Court of Canada
At Bellissimo Law Group PC we can help!
We represent clients at each stage of the litigation (sometimes referred to as the “appeal” at the Immigration and Refugee Board level) including seeking leave and judicial review at the Federal Court and further steps in rare cases to the Federal Court of Appeal, and the Supreme Court of Canada.
At Bellissimo Law Group PC, we pride ourselves on being one of the leading law firms that deal with refusals, including family class, deportations, residency cases, citizenship and refugee/protected person matters. In this section, we set out some basic considerations at the Federal Court. Most recently we were part of the litigation that struck down portions of the Citizenship Act as unconstitutional.
When can I go to the Federal Court?
Section 18.1 of the Federal Courts Act provides the authority to bring an Application for Judicial Review to the Federal Court by anyone who has been directly affected by the matter for which relief is being sought at the Federal Court, including relief from a decision made under the Immigration and Refugee Protection Act. The Federal Court may grant relief from a decision in a variety of circumstances, including on the basis that the federal board, commission or other tribunal erred in law or fact (or both) in making the decision, and/or that there was a breach of procedural fairness.
This section also outlines time limits (be aware that time limits are amended in IRPA proceedings, as explained below), the powers of the Federal Court, and on what grounds an application can be brought. For reference, time limits to file the “Notice of Application” must be within 15 days of receipt of the refusal for matters arising in Canada, or within 60 days for matters arising outside of Canada.
What are the steps for filing at the Federal Court?
The Notice of Application
The filing of a notice of Application for leave commences review proceedings (the Application for Leave). The notice of application must be served on the Respondent (Minister of Citizenship and Immigration as one example) and then re-filed with the Court Registry after service. The following information is required to complete the notice of application:
- The name of the Applicant;
- The name of the tribunal that made the decision;
- The location of the tribunal. 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;
- The date that the decision was made. This will usually be the date that the refusal letter is signed;
- 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 or the emails 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;
- The applicant’s visa office file number; and
- 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 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 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. Still, 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.
The affidavit must also 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 a result of not disclosing a cause of action. The more detailed the evidence, the more chance the application will have of success.
Relevant documents can and should be attached to the affidavit as exhibits. More than one affidavit can be filed. If someone other than the applicant has relevant information concerning the matter (such as a previous representative 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.
Granting of Leave
If leave to appeal 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.
The Further Affidavit and Further Memorandum are critical, as the legal tests for obtaining leave versus successfully overturning a decision on judicial review are different. Both the Applicant and Respondent are also given a time period in which to cross-examine the deponent of the affidavit. 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.
How can we help?
We have significant experience and have been successful at all levels of “immigration related” courts and tribunals in Canada. We can assist applicants hoping to challenge a negative decision by:
- Reviewing the immigration file, the law, including all relevant legislation and case law;
- Applying for ATIPS;
- Collecting all relevant materials related to the client’s immigration history and assessing chances of a successful application at the Federal Court;
- Preparing case strategy;
- Pursuit of 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;
- Composing legal and factual arguments;
- Preparing 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.
Please contact Bellissimo Law Group PC if you require assistance at the Federal Court of Canada.