We argued this determination was based in the Applicant’s arguments upon unforeseeable credibility concerns (he would not leave, course of study, gap in schooling) which were not put to the Applicant and to which the Applicant was not given an opportunity to respond and factual errors unsupported by the record.  The Applicant also argued the Officer failed to properly assess important, credible, and highly relevant evidence including the ESL course he was taking was a compulsory requirement of admission to his program of study in Canada, he could not take another ESL course at a different location, why he was resuming studies later in life, his dual intention, the course of study was linked to his previous study and his significant ties to his home country. In all, the Applicant was of the view he presented an application that was complete and met all legal requirements.

It is well established in law when considering a study permit application, immigration officers have discretion in assessing the evidence and arriving at a decision. However, the decision must contain reasonable findings of fact based on an analysis of relevant evidence. It is trite law that a decision that runs contrary to the evidence is unreasonable.[2]

The Respondent argued the concerns arose from the legislative requirements and it was an insufficiency of evidence finding and reasonable.  There was no procedural breach, no right to an interview and the Applicant was simply disagreeing with the weight assigned by the Officer to the evidence.  Although there may have been other options open to the Officer the negative finding based upon this rational was still within the range of reasonable outcomes.  The Court did not agree and the Honourable Justice Grammond determined the decson was unreasonable.[3]

This case in my view is a good reminder that these applications should not be based upon generalizations and stereotypes but upon an applicant’s individualized circumstances.[4] So, in these types of circumstances suspicions, stereotypes, generalizations or whatever the description have no place. Simply put, the Applicant’s 250 plus page application for a study permit was complete and met all legal requirements and he was owed the opportunity to have his individual circumstances considered.  Anything less is not reasonable and the Federal Court agreed.

For a more detailed discussion of this stage please subscribe to Immquest in our publications section – click here

For more information on applying for a study permit or challenging a refusal please contact us

Thank you for reading.

Sources

The post Study Permit Cases Should Be Decided on Individual Factors and Not Stereotypes or Generalizations first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Couple Reunites in Canada After Subsequent Refusals/Removal Order first appeared on Bellissimo Law Group.

1. The failure to request an extension where necessary to file fuller and more comprehensive submissions and supporting evidence. We see so many cases where a more detailed and responsive report as one example, could have spelled the difference. But instead, the rush to file resulted in a procedural fairness response that did not provide a complete picture of the applicants’ circumstances and resulted in a justifiable refusal.

2. Submissions and evidence do not address the legal timeline. For example, if the applicant has a medical specialist, a letter from this specialist must be obtained that speaks to the relevant 5-10 year period. Remember, the test is not a lifetime or conversely how the applicant is doing right now.  We see this so often where the focus is on the here and now and ignores the forward looking portion of the legal, medical and factual immigration analysis.

3. Failing to properly research and understand the interplay between federal and provincial delivery of health and social services and private versus public coverage respectively. The applicant must consult the appropriate province and understand the nuances of the public versus private scheme.  This exercise by far is one of the most complicated aspects of a medical inadmissibility immigration case and where most errors occur. Each province has its own plan of delivery for social service care as an example and what can be covered privately is a complex and cumbersome exercise.  Prescription drugs in (health service) versus out of hospital (social service), is an area of frequent confusion.  If the majority of the cost of the drugs is and could be covered privately, it would not be government-funded and so the cost would not be an “excessive demand” within the meaning of the IRPA.

4. Applying the right legal test. The legislative threshold is reasonable probability not remote possibility — all evidence and research must be analyzed in this context. It is not what could happen but what will likely happen to the applicant not any applicant with this condition, based on the applicant’s individualized circumstances.

5. Does the applicant know the case to be met? Again, so many applicants proceed to respond to unclear procedural fairness letters without fully understanding the immigration case to meet. Ensuring the procedural fairness letter properly qualifies the demand, distinguishes between health and social costs, and eligibility and actual need are critical points to address if not clear. Is the information being relied upon in the procedural fairness letter outdated or inapplicable because of the intended province of destination or eligibility issues?  Is the Medical Officer qualified to render that opinion?  Did the Medical Officer make the decision?  A number of probing questions have to be applied to the procedural fairness demand before a response is developed.

Thankfully a number of cases can still be saved at the Federal Court or Immigration Appeal Division despite missteps on the original response to the procedural fairness letter but certainly not all. Hiring a skilled and experienced immigration representative in this very complex area of immigration law is critical to ensure the fullest legal and factual arguments can be advanced.

For more information on Medical inadmissibility, please click here.

(Sources)

The post Mistakes & Medical Inadmissibility: Top 5 Preventable Issues! first appeared on Bellissimo Law Group.

1. Find immigration lawyers that deal with your type of case. This is very important because the more experience they have, the better positioned they are to represent you and make the process easier for you.

2. Next, you need to gather copies of your application, and any letters that have been sent to you by Immigration Canada or that you sent to them during the processing. If you do not have all the copies, an immigration lawyer may be able to assist.

3. Act quickly as deadlines to fight the negative immigration visa decision could be as short as 15 days!

4. At the first immigration consultation, your entire Canadian immigration case will be discussed and you will be given details on timelines, likelihood of success, costs and your role in the process.

5. As Toronto immigration lawyers, we see hundreds of clients from all over the world – in person, by phone and by Skype and the good news is that not every immigration and citizenship case goes to a hearing. Many cases settle and this is not widely known in immigration cases. Also, if the case goes to Federal Court, your evidence is given by affidavit and not by testifying before a judge.

So, before accepting that immigration visa refusal, make sure a mistake was not made. We see citizenship, immigration and refugee applicants every week and although you have heard it before, help really is a phone call or e-mail away.

For more information on Federal Court Applications and Appeals, please click here.

Contact us today.

The post The Reality of Refusals: Challenging Denied Immigration Visa Applications first appeared on Bellissimo Law Group.

Any immigration appeal matters, such as appeals for refusals or removal orders, are heard and decided at the Immigration Appeal Division. There are three categories for appeal that have access to the IAD:

Residency appeals

• Where a person is found not to have met their residency obligations

Sponsorship appeals

• Where an overseas application for sponsorship has been refused; inland has no right for appeal

Removal order appeals

• Where a permanent resident has been found to be inadmissible and therefore are subject to removal from Canada

An appellant should expect to have a hearing in about 18 months, however  the trend has been that people are receiving hearings much faster than they have in previous years.

Procedural wise – what to expect 

• If you find yourself at a hearing, have your documentation be significant; call witnesses to provide evidence on your behalf
• Documentary evidence can play a significant role, therefore this is an important process when collecting information
• You can expect to be examined and to give evidence orally

You may be issued a decision orally at your hearing or it could take up to two months to hear a decision.

It is always best to seek the advice of counsel in order to strive to meet a positive outcome to an appeal. If you are not certain about your appeal right and your options please contact us today.

For more information on immigration appeals, click here.

The post Have You Received an Unfair Decision? Your Right to Appeal first appeared on Bellissimo Law Group.