Anyone who has appeared before the Federal Court of Appeal and the Federal Court on an immigration matter appreciates the experience can be exhilarating, humbling, and challenging. Each year issues and questions will be decided by some of the finest legal minds in our country as the jurisprudential and legislative evolution of the IRPA continues.
A refusal of a case may mean many things to a practitioner. For your clients it may mean dreams delayed and hopes sometimes crushed. A refusal is an unpleasant fact of life in the practice of immigration law. Immediate steps after a refusal are essential to preserve a client’s rights. But before looking to the Courts we must ask was the refusal fair? Will the record withstand the close scrutiny of a Federal Court proceeding? Once these questions have been addressed the file must be triaged.
Triage of a file – 5 steps
The refusal
Take a breath and read the refusal letter closely. Then put it down and read it again in an hour or two. Ensure it relates to your client: cross reference client ID numbers and names and ensure that dates make sense. Look to see if you can find any errors of law or fact. Is a re-consideration possible? If you do not have full reasons request same immediately.
Time line/limitation period
Quickly identify the nature of the refusal. In land, overseas, citizenship, a misrepresentation? Different time limits apply – 15, 20 or 60 days. This is critical to understanding the timeline under which you are operating.
Post filing finding
Was the refusal based upon evidence your client did not share with you? Evidence that has been revealed only in the reasons for refusal?
Advise client
Advise the client of the refusal and the areas of concern. Further advise if is this is a case wherein you will be handling the appeal or sending it out to a specialist. Timelines, potential errors and costs can be canvassed in a preliminary manner.
Complete file
If inheriting the file ensure you have a full and complete record including submissions, supporting documentation and correspondence. Step 5 is best satisfied if the ten filing steps below are followed.
Before the court – 10 tips
Regardless of the ultimate disposition on a file it is best to utilize the following as safeguards:
Key preparatory steps
Table of contents
When preparing submissions include a detailed table of contents of the enclosures, numbering the corresponding pages (either in your submission letter or separately, including supporting documents) and identifying the same pages in your table of contents. A litigator and the Courts appreciate a well prepared and organized application package. It also ensures when Citizenship & Immigration Canada (CIC) or the Canada Border Services Agency (CBSA) to name but two, vets the file you are in a position to cross reference with your own records.
Provide the full file
Always provide the litigator with a copy of the entire file, including all opposing disclosure, i.e.: failed refugee claims: the Refugee Protection Division for example is oftentimes using updated disclosure packages, POE notes, which are often helpful in extracting points of contention.
ATIP requests
Make it a habit to order a few “Access to Information & Privacy Requests” (ATIP) as these are especially helpful in litigation. With files taking years to process this information will be updated so one request may not be sufficient. These allow the Applicant an opportunity to know the case to be met before having to wait to review a respondent’s memorandum. It takes a great deal of time (between 30-90 days) to receive the ATIP packages and this is almost always too long when preparing an application record for Federal Court. Sometimes it is best to just order the CAIPS or FOSS in emergency circumstances as these can be produced much faster than the entire file.
Docketing file
Always follow up any conversations with the Embassy, CIC Office or the Board with letters confirming conversations so as to avoid factual disputes later. Maintain proof of delivery and the correspondence will often make it into CIC or CBSA’s file and be available in the ATIP request as well.
Interviews
Always request in person interviews if an officer is making credibility assessments.
Case law
Look to case law for ‘language’ utilized by the Courts to clearly communicate legal arguments in your submissions. These submissions will be readily identifiable to the Courts upon review.
Reasons
Always request full written reasons of the decision maker within your submission.
Manage expectations
Although not anticipated or desirable, you must have the conversation with your client regarding a potential refusal before a refusal. It at least provides a frame of reference for the client in the case of a negative decision.
Reconsideration requests
Although requests for reconsiderations are often ignored or not considered on refusals, they are not always ignored and can save your client the cost of litigation. Although unlikely, still worth the letter.
Keep current
Know the latest case law in the area you are dealing with to ensure you have the latest interpretation of the law as it affects your client.
About the Author
Mario D. Bellissimo, founding associate of the law firm of Bellissimo Law Group (Ormston, Bellissimo, Rotenberg), is certified by the Law Society of Upper Canada as a Specialist in Citizenship, Immigration and Refugee Protection.