Visa Refusals, and Federal Court
The recent decision of the Supreme Court of Canada on December 19, 2019 in “Vavilov” (2019 SCC 65) set a new higher standard for decision making in immigration matters. The decisions in a significant number of visa refusals (study permits, work permits, temporary resident visas) do not meet the new “Vavilov” standard. Decisions must provide analysis of the evidence, and explain how the factors were assessed. In many decisions, there is a listing of factors and a conclusion. Many of those decisions will not meet the new “Vavilov” standard.
Standard wording is:
“I have reviewed the application. I am not satisfied that you leave Canada at the end of your stay as a temporary resident,” followed by one or more of the following:
” based on your family ties in Canada and in your country of residence”; or,
” based on the purpose of your visit”; or,
” based on your personal assets and financial status” or “socio-economic status”; or,
” Taking the applicant’s plan of studies into account, the applicant does not appear to be sufficiently well established that the proposed studies would be a reasonable expense”; or,
” less costly “similar programs are available closer to the Applicant’s place of residence for more competitive tuition fees and the benefits to the Applicant of taking the program do not appear to outweigh the costs”.
” prior travel history is insufficient to count as a positive factor”; or,
” You were not able to demonstrate that you will be able to adequately perform the work you seek”; or,
” You have not demonstrated that you meet requirements for the job in Canada”;
The refusal decision may typically conclude with, “Weighing the factors in this application. I am not satisfied that the applicant will depart Canada at the end of the period authorized for their stay. For the reasons above, I have refused this application.”
This kind of refusal decision typically does not explain how any of the factors were assessed. A conclusion that is not supported by analysis would likely not be in compliance with the new “Vavilov” requirements. The expected outcome of Federal Court is the cancellation of the refusal, and the case sent to a different visa officer, for a fresh determination. The outcome in many cases involving this issue is a settlement. It will take time for immigration authorities to redevelop their internal software product and to provide training to catch up to the new “Vavilov” requirements. Until then, people should be aware that the Federal Court process offers relief for these kinds of refusals.
If this refusal situation may apply to you, send us an e-mail attaching a copy of your refusal decision. We will then review, and request a copy of what was sent to the visa office.
We will provide our recommendation to either: (1) re-apply with new information and documents to address the visa officer’s concerns; or, (2) to consider Federal Court; or, (3) to look at options in other countries.
You will likely need to e-mail us soon, as there are only 60 days of receiving a refusal if you are outside Canada within which you may lock-in your legal recourse in Federal Court; and only 15 days if you are inside Canada (eg. refusal of an extension of status). These are the deadlines of the Federal Court.
We will provide an explanation of the Federal Court process, time estimate, total cost “all in”, and we take all questions.
There is no cost to receive our information.