Should you appeal the negative decision in your Canadian Immigration, Citizenship, or other government application? Or instead reapply?
By Stephen Fogarty • March 3, 2021
Whether we are private individuals, professionals, or businesspersons, we all end up having to deal with governments and submit applications. These might be for legal status such as citizenship, residency, or a permit, as well as seeking a benefit, licence, rezoning, variation, renewal, tax assessment, or a myriad of other possibilities. Sometimes, despite submitting what was thought to have been a solid application, the decision comes back negative. This can be very frustrating, particularly when there was a long delay waiting for the decision.
This article is based on my many years of experience in undertaking appeals in Canadian immigration and citizenship law. These appeals are part of general administrative law and so the issues I discuss here likely would be relevant for appeals against the government for many kinds of applications in Canada.
As Shakespeare’s character Hamlet might have asked, had he been a regular person, and not a prince, “To appeal, or not to appeal, that is the question.”
Before you begin – caution is warranted.
There are many individuals who post comments on online discussion forums. Doing so does not make them an expert, even if they have posted hundreds of times. Depending on comments by persons who have no professional qualifications raises your level of risk. Such people may be well-meaning and can share some good pointers, but just as often their comments are made in context of their personal situation, which can never parallel your own exactly, and may reflect their experiences from when the law was different than now, or they are simply misinformed.
In deciding whether to appeal your own decision, the best course is to have your file reviewed by an experienced appeals / administrative law attorney who can perform the legal equivalent of an “X-ray” to see what happened and whether an appeal is advisable. (Your case might also require advice from other professionals to make your decision, such as an accountant, architect, medical doctor, etc.)
Your best choice might be not to appeal and not to reapply, but to apply under a different option you did not realize was open to you. An attorney can help you make that choice, too.
Is there an automatic right of appeal?
The answer to this may be stated in the decision notification itself, but such is not always the case, or may not be stated clearly. (Lots of double negatives and the like.)
In some legislation, provisions may prohibit or restrict appeal rights. (This is known as a privative clause.) In a similar vein, it may be necessary to request permission to appeal to the next level (board or court). Such requests are known as an Application for Leave. Even if there is a prohibition against an appeal, in Canada you may still be able to apply to the Superior Court or the Federal Court for judicial review.
What is required to start your appeal?
In addition to paying a filing fee, you need to know if you are obliged to explain your grounds of appeal fully when filing your case, or if you can give only a summary to start and complete your submissions later, and perhaps even add more points at a hearing. If an Application for Leave is required, you will likely have to set out all your arguments. You don’t want to show up at your hearing date prepared to make all manner of new arguments and learn you are stuck with what you submitted initially!
What is the legal delay to appeal?
Most statutes provide for time limits to file appeals. Be sure you find this out. The rules may not be obvious to a lay person. (“15 days after the day on which the applicant is informed, is deemed informed, or otherwise became aware of the decision” is typical of the jargon across all kinds of legislation.)
Legal delays are not suggestions! Even if the rules allow you to request an extension of time, the tribunal or court may have case law establishing that you need a significant reason such as a heart attack or fire on your premises to obtain an extension of dely. Procrastination is your enemy.
What kind of appeal is it?
We often see new clients who are confused as to what an appeal court or tribunal can do.
There are two main types of appeal, depending on the law applicable to your situation. A full appeal or appeal de novo will enable you to reargue your case and normally to update your file with new documents or facts. You may be allowed to add evidence that was available to you, but you did not include in your original application. In this kind of appeal, the tribunal or court may have the power to cancel the negative decision and make the decision that should have been made to begin with.
A narrower kind of appeal is a review or judicial review. In such cases, normally you are limited to making your arguments in relation to the file as it existed at the time of the decision. The best result you can obtain in this kind of appeal will be to have the refusal cancelled, and have the case studied by a new official. Only then might you be permitted to add additional evidence.
Was there an error in the decision?
We sometimes meet new clients referred from other law firms whose file was rejected, and they are determined to appeal “as a matter of principle”. We are always empathetic to the disappointment that may be experienced by you as our clients, but unless there was an important error in the case, you may be wasting your time and resources, and operating on false hopes, if you file an appeal.
For example, you might have been required to provide specific documents to support your application, but did not understand this requirement, or simply neglected to include them when applying. A refusal on the basis that your file was incomplete might not be an error at all unless the decision-maker was required to give you a notice to provide the missing items and did not do so.
By appealable errors, we mean those resulting from the decision-maker misunderstanding the evidence, or incorrectly applying the legal rules relevant to your case, or failing to respect procedural fairness, and perhaps possibly showing signs of bias, or a combination of these.
This leads to the next point.
Was the error serious enough to have made a difference in the outcome?
It may be that the decision-maker did indeed make mistakes in your case. But, if the errors related to matters that were not important to the merits of your file, you may not have much of a chance to win an appeal. (In legal jargon, these may be called “collateral” issues.)
Determining whether there are serious enough mistakes to file an appeal is also a question for a skilled appeals / administrative law attorney to help you resolve.
Will you have to testify?
Depending on the type of appeal necessary for your case, you may have to appear before a tribunal to testify. This is more likely with a full hearing on the case (de novo hearing). With Covid-19, most hearings are proceeding by testimony via Zoom or Teams. It is my view this practice will continue post coronavirus. But even if it is normal to testify for your type of appeal, it may be possible to settle your case without any formal testimony.
If you are required to testify, we at Fogarty Law Firm will review your entire case with you in detail. We will help you practice responding to questions so that you will be able to answer truthfully and confidentially in court. We will meet with you and your witnesses by videoconference, and you will be ready for any eventuality at your appeal hearing.
I already started my appeal. Is it too late to use your firm?
Not at all! Fogarty Law Firm can take over your file at any point you wish, even if you already started your appeal. And if you retained someone to help you, you are not obliged to continue with the same individual.
Should you reapply / submit a new application instead of appealing?
Now, this is a big question! There are many factors to weigh. Here are some major concerns:
Are you bound by findings in the original decision (res judicata / chose jugée)
If the original decision-maker ruled on an important issue central to your kind of application, and you do not appeal, this point becomes a decided matter in law. So, applying again to the same agency for the same kind of application will likely face another refusal. For example, if you are sponsoring your spouse and the Immigration Officer decided she married you with the main goal of using you as a bridge to enter Canada, filing a new sponsorship will not resolve that finding. The new decision-maker will feel bound to follow the earlier ruling on that issue.
If the original decision-maker concluded that you were dishonest, untruthful, exaggerated, lacked credibility, had engaged in outright misrepresentation, or similar conclusions, you will want to strongly consider filing an appeal if for no other reason than to go on record disputing such findings. Consider as well, you may be obliged to declare negative results from previous government applications when applying again, and even for a different kind of application, here or abroad. For example, Canadian Immigration forms will ask you if you have ever been refused entry to another country. Also, if your file were dealt with by a tribunal or court, most such proceedings are available to the public so anyone could have access to the final decision. Do you want a negative ruling affecting your reputation all over the Internet?
With the after-effects of Covid-19 still being felt on government processing, you want to balance the published / likely processing timelines for new applications vs. filing an appeal. This is especially important if you are faced with a situation requiring a quick solution. Note that if you appeal, the appeals officer / tribunal may have the power to fast-track your file if your appeal is granted. This is an important point to check. If so, your overall time then might possibly be faster going the appeal route – presuming you win your appeal!
Sometimes you can get the result you want faster by reapplying and providing additional info or documents that the original decision-maker stated were missing or unclear when you applied the first time.
In addition to the filing fees and paying fees of lawyers and possibly experts if you appeal, you want to weigh all this against the cost of doing nothing and living with the negative decision. If it is preventing you from achieving your goals, such as impeding your family’s reunification, putting roadblocks in the way of your business, or other important concerns, consider all the related costs involved.
Receiving negative rulings from government officials and tribunals in applications you worked so hard to prepare presents disappointment and challenges. General standards of excellence seem to have dipped in many areas, more so during the second wave of Covid-19. Government agents do not appear immune from this tendency, and we must keep in mind it is not always easy for them working remotely from home trying to make their way through application files comprised of many pages of documents using a small, government supplied laptop reading PDFs all day long. Consider your refused application in relation to your main personal, legal, business, and other goals. Then seek professional advice to help you decide whether to appeal, reapply, or move on to different matters. The application you did not even know was available to you might be the best choice. The important thing is to decide what to do and be well-informed doing so.
We at Fogarty Law Firm enjoy helping people review their files to determine what approach is best suited to your requirements, when answering the question of whether you should appeal, reapply, or look for another solution. If your particular legal area is not one we are familiar with, we can help you find an attorney who is. Looking forward to hearing from you!
Contact us at 514-633-9289 or send us a note at www.fogartylaw.ca/contact to get started.
Photo credit: (c) 2021, Stephen J Fogarty Québec Court of Appeal, Montréal, Canada