Understanding the Appeal System in Immigration Law: How Applicants Can Challenge Visa Refusals
The appeals process under immigration law is one of the main ways an applicant can ask for a review and possible change to a decision made by the immigration department. In this post, I will outline how the appeals process in immigration works and provide an overview of how an applicant can appeal a visa refusal using multiple legal options. Being informed about the rules of procedure and grounds of appeal and having a sound strategy will allow an applicant to feel confident and to increase their chances of success during the appeal process.
Introduction
A visa rejection can represent a significant obstacle to someone who wants to visit, resettle or move out of their home country. In many instances denying a visa will cause problems for a person’s financial status, career/occupation and/or overall well being. While denying a visa often feels like the end, it is important to keep in mind that most countries that process visas have a formal procedure for applicants to request an application for an appeal. Therefore, it is essential for those whose applications were declined to become familiar with what will happen through this process. The process will allow you to demonstrate that there was an error made in reaching the initial decision to deny your application and/or to establish that an incorrect legal standard was applied. Knowing the appeal process is crucial to establishing justice as well as providing an opportunity for the reconsideration of the original decision to refuse the visa application.
The Essence of the Immigration Appeal System
An independent tribunal reviews the validity and reasonableness of a visa refusal through the appeals process and whether the process was followed. The appellate tribunal does not look at everything about the application but searches for errors made in the original decision process.
For appeals, there are generally three types of reviews: Legislative Review, Alba Review, and Procedural Natural Justice Review. During the Legislative Review, the tribunal assesses whether the original decision-maker made proper interpretations of and followed common law and applicable legislation. The Alba Review assesses whether all evidence submitted to the original authority was appropriately considered. Finally, the Procedural Natural Justice Review assesses whether the applicant had a proper opportunity to present their case and whether procedures were appropriately followed throughout the process.
Grounds for Challenging Visa Refusal
Visa rejections can be contested and are based on several recognized grounds. A misapplication of the law occurs when an immigration officer has misunderstood or applied immigration law incorrectly. A factual error occurs when a ruling is made on the basis of findings that are demonstrably false or there is insufficient evidence to support such findings. Procedural unfairness occurs in situations in which the applicant did not have the opportunity to respond to an immigration officer’s concern or when all relevant submissions have not been considered by the immigration officer. A decision is irrational when there is no rational basis for the decision and/or when it is inconsistent with at least one established fact. Breaches of natural justice can occur when the applicant has been unaware of information that could influence their decision to apply for the visa or has been subject to a conflict of interest.
For Challenging a Visa Refusal
Challenging a visa denial for immigration is possible using several established methods. The first step is often filing an appeal with the Immigration Appeal Division (IAD) that states the reasons for appeal legally as well as factually and includes evidence supporting your grounds for appealing the decision, within the specified timeframe [normally 30 days]. The second method is judicial review [once all administrative avenues have been exhausted] whereby an applicant may seek the courts, but judicial review will only be available if an applicant does not have a right of appeal at the IAD; this will be discussed below. The third method would involve requesting Immigration Canada to reconsider their previous decision to deny or not approve a visa. Finally, the last option is to submit a new visa application explaining the reasons for their previous refusal and providing additional evidence in support of your application.
Conclusion
By providing applicants the opportunity to appeal any unjust or incorrect decisions regarding their immigration status, Immigration Appeals offers a critical mechanism through which many applicants can gain legal relief. Knowing what kinds of appeal exist, the grounds you can use to challenge a decision, and how to effectively advocate for the reversal of an immigration decision on appeal in your favour will allow you to advocate effectively for your case. Although all appellate procedures include necessary requirements, knowing these as well as having more than one opportunity for a detailed examination of the legal issues affecting the decision provides applicants with multiple opportunities to correct erroneous immigration decisions through an appeals process. The availability of appeals to reverse immigration decisions reinforces the necessity that all immigration decisions be made based upon reasonable, fair and lawful principles thus reducing the likelihood of arbitrary or capricious government actions against immigrants and their families.
Written by Ashok Kumar Ratan,
Legal Intern at Sandhu Law Offices,
BA LL.B(Hons), Assam University, Silchar
