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If your permanent residence application as a member of the start-up business class was refused, and you have strong reasons to believe there was an error in the decision-making process, this video is meant to help you decide what to do next. Believe it or not, IRCC officers do make mistakes and there are actions that can be taken to bring an application back to life. A refusal is not necessarily the end of your immigration journey.
Upon receiving a refusal, it's essential to meticulously examine the letter from IRCC and obtain your Global Case Management System (GCMS) Notes to understand the specific reasons behind the decision. Based on the nature of your case and the reasons for denial, you have a range of options to consider. These options include reapplication, seeking reconsideration, and exploring a less commonly known yet effective strategy: pursuing a Judicial Review.
Do you want to become a PR in Canada? At INGWE we could support you! Get a FREE email assessment with one of our licensed immigration consultants. We speak over +8 languages and we have helped applicants from +50 countries in their immigration path to Canada. Fill out our form, click here.
In simple words, a Judicial review is a second opinion for your application denial. It's a legal process where a court checks if the decision to deny your visa was fair and followed the law. This procedure ensures that the application denial adhered to the proper legal standards and safeguards your rights by verifying the correctness and justice of the process.
We only recommend certain applications to go this route. If your initial application was missing documents, wasn't strong, or had several gaps, then a Judicial Review is definitely not the best option for you. As immigration consultants, our goal is to make comprehensive applications that address all potential issues and provide the reviewing officer with ample, well-documented evidence to back up every claim made in your initial application. If your application was meticulously prepared in this way and yet faced a refusal, you could be an ideal candidate for a Judicial Review.
1: Get legal advice and representation from an immigration lawyer that will help you determine the legal basis for the review, such as errors in law, failure to follow proper procedures, or violation of principles of natural justice. They can provide advice on the viability of your case and represent you in court.
2: Learn about the timelines and steps for filing a judicial review application. Keep in mind there is a set number of days to apply for Judicial Review after receiving the refusal notification.
In addition, it is also important to consider that before applying for Judicial Review, there is a leave requirement. Under Canadian immigration law, if you disagree with a decision related to immigration, like a visa decision, you can't just go straight to court to challenge it. First, you need to ask the court's permission to review your case. This is called 'seeking leave.' In other words, you're asking the court if you can present your argument at a hearing. This rule now applies to visa decisions too, which didn't need this step before.
As a result, the process has two parts. First, you submit your request on paper. The court looks at it and decides if your case is strong enough to move forward. If they say no, that's the end of the road for your challenge. Unfortunately, this decision can't be appealed.
However, if the court agrees with you, you move to the second stage, where you get to argue your case at a hearing. This whole process is known as applying for 'leave and judicial review."
Do you want to become a PR in Canada? At INGWE we could support you! Get a FREE email assessment with one of our licensed immigration consultants. We speak over +8 languages and we have helped applicants from +50 countries in their immigration path to Canada. Fill out our form, click here.
Understanding and articulating clear grounds for judicial review is crucial. These include demonstrating that the decision-maker made an error in law, made a fundamentally wrong factual determination, violated principles of natural justice, exceeded their authority, or any other legal fault as outlined in the Federal Courts Act. Effective arguments in these areas with supporting solid documents are key to persuading the court of the need for review.
In addition, and just like with any other legal procedure, procedural adherence, timely and accurate communication, comprehensive preparation of case materials, understanding the legal basis for review, and strict compliance with court orders and timelines will help to obtain a successful judicial review process.
If the leave for judicial review is granted but the judicial review itself is subsequently denied, the decision of the tribunal is upheld, which means the Court is satisfied that the decision was arrived at in a lawful manner. This means that the original decision made by the IRCC officer remains valid and enforceable.
In this scenario, reapplying may not be the most practical or strategic approach.
However, it's important to note that in cases where the judicial review process leads to a decision being overturned and the matter is remitted for redetermination, the IRCC officer’s decision is essentially cancelled. This cancellation allows the parties to proceed as if the original decision had never been made, enabling a different officer to start afresh. This new determination can take into consideration any new facts that have arisen since the original decision. The officer or panel conducting the redetermination must observe principles of procedural fairness and is bound to comply with any specific directions or conclusions determined by the Court during the judicial review process.
Do you want to become a PR in Canada? At INGWE we could support you! Get a FREE email assessment with one of our licensed immigration consultants. We speak over +8 languages and we have helped applicants from +50 countries in their immigration path to Canada. Fill out our form, click here.
Canadian immigration consultants cannot provide legal advice during judicial proceedings; however, they play a crucial role in meticulously preparing the initial application to ensure it complies with all relevant standards, laying a solid foundation in the event a judicial review becomes necessary.
In conclusion, successfully navigating a judicial review for start-up visa requires a well-planned strategy and an understanding of the legal framework. By securing expert legal representation, adhering to procedural deadlines, and preparing a persuasive case that addresses errors in the visa decision process, applicants can effectively challenge unjust visa denials.
The Judicial Review process underscores the importance of a meticulously prepared initial application, as it forms the foundation for any potential legal challenge, emphasizing the importance of ensuring applications meet all required standards.
Approaching a judicial review with realistic expectations and a clear grasp of its procedural nuances—specifically the two-stage process of seeking leave and then, if granted, proceeding to the review itself—is essential. While not every application may be suited for judicial review, for those that are, it represents a crucial opportunity to overturn wrongful decisions. This pathway offers some hope for individuals facing the daunting prospect of a visa refusal.
If you’re thinking about immigrating whether permanently or temporarily - you’re at the right place! Our team speaks over +9 languages, and we help applicants from over 50 different countries during their immigration process. Get a free email assessment, click here.
If you’re ready to apply and would like a 1-on-1 session with one of our immigration team members at INGWE, you can also book a session directly using this consultation link.
