5th Refusal - Considering Federal Court Appeal

[mohibelani]

Dear All,

I am seeking for some assistance or cases of success where an appeal has been made over an TRV and it has been granted.

My wife has got her 5th refusal over a course of 4 years and I have listed the details below:

First Application - Sept 2014 - Visitors Visa

Refused as the letters of invitation provided were not complete with all details and funds were not enough hence was refused and the overall application was weak.

We were only dating at that time and had zero experience of online applications which was our mistake.

Second Application - Dec 2014 - Visitors Visa

This time round we changed the whole application to her visiting Canada on her own without the invitation letter but showed enough funds in her statements.

Third Application - Nov 2015 - Study Permit

After some time had passed, we decided probably best to move to Canada and letting her study while I work and provided all possible documents in terms of support from her Family our finances including paying 12 months tuition in advance etc.

No clear reason of refusal even on ATIP notes.

Fourth Application - Jan 2016 - Study Permit

As soon as we got the previous refusal we were not exactly sure about the reason for the refusal and thought that they needed a letter to state that she will get a job back in dubai and we need provide additional documents such as our attested property deeds to solidify our details which we provided and yet it was refused - visa officer stated that the intentions of visit dont seem to be clear.

At this point we dropped the idea of going to Canada completely because we just couldnt get passed the Visa officers and it was extremely stressful and financially draining to continue hence we let it go.

March 2017, me and my wife tied the know with my family who resides Canada come down to visit us and it was an amazing time for my family since this was the first time my family physically met my wife - I know this sounds crazy but given the visa problems it was just never possible for my parents to meet my wife physically though they used to talk almost every day through skype.

Nov 2017, my mother got diagnosed with Breast cancer and it was a devastating blow to my whole family, I have personally visited my mother in Toronto a few times because I can being PR of Canada and I am about to get my citizenship soon, but knowing the refusals we have had previously we did not want to try to apply for TRV for my wife.

Sept 2018, my mother did not respond well to her treatments and it was just unacceptable to us as a family that my wife cannot visit her mother in law and cannot be with me when we want to visit my mother during such difficult times.

We decided this time that we will use representation and hired a lawyer to support our case for a TRV as we genuinely do not have the interest at this stage after the refusals to live in Canada atleast until the near future.

5th Application - Nov 2017 - Visitors Visa

We prepared an application showing all our previous refusals, statements, character references, sworn affidavits, strong bank statements showing close 10,000 CAD for a period of visit for 3 months, bank statements of my family and letters confirming that will support my wife as well in case additional funds are required; letters from hospitals, doctors and health reports showing my mothers health and a letter from the lawyer addressing the rule book that the Canadian authorities can request for a bond from my wife to guarantee her exit at the end of her stay.

All these documents were submitted and we have received a refusal letter again stating only one point that the visa officer is not convinced on the purpose of visit.

We are absolutely baffled, devastated and disappointed on the last refusal and have completely lost all hopes on our case and have been recommended by our Lawyer to file an appeal with the federal courts as the refusal seems very unjust based on all the documents that have been provided.

If you have taken the time to read this through I am very grateful to you and request some advise and guidance on the following points, I have already requested for the ATIP notes and waiting for it:

A) Does this case sound like a case that should be taken for Appeal?
B) How long is a processing time of Appeal as we are very time critical at this stage?
C) Should I be contacting any Ambassadors at the local embassy or any MP's for this case that provide support?
D) Has anyone had a success on appealing an TRV or do you know anyone who has been successful?
E) What real options do me and my family really have?

I really hope that I can get some valuable advise, as we are really pressed on time and very lost on the step forward.

Thanks,

 

[scylla]

Dear All,

I am seeking for some assistance or cases of success where an appeal has been made over an TRV and it has been granted.

My wife has got her 5th refusal over a course of 4 years and I have listed the details below:

First Application - Sept 2014 - Visitors Visa

Refused as the letters of invitation provided were not complete with all details and funds were not enough hence was refused and the overall application was weak.

We were only dating at that time and had zero experience of online applications which was our mistake.

Second Application - Dec 2014 - Visitors Visa

This time round we changed the whole application to her visiting Canada on her own without the invitation letter but showed enough funds in her statements.

Third Application - Nov 2015 - Study Permit

After some time had passed, we decided probably best to move to Canada and letting her study while I work and provided all possible documents in terms of support from her Family our finances including paying 12 months tuition in advance etc.

No clear reason of refusal even on ATIP notes.

Fourth Application - Jan 2016 - Study Permit

As soon as we got the previous refusal we were not exactly sure about the reason for the refusal and thought that they needed a letter to state that she will get a job back in dubai and we need provide additional documents such as our attested property deeds to solidify our details which we provided and yet it was refused - visa officer stated that the intentions of visit dont seem to be clear.

At this point we dropped the idea of going to Canada completely because we just couldnt get passed the Visa officers and it was extremely stressful and financially draining to continue hence we let it go.

March 2017, me and my wife tied the know with my family who resides Canada come down to visit us and it was an amazing time for my family since this was the first time my family physically met my wife - I know this sounds crazy but given the visa problems it was just never possible for my parents to meet my wife physically though they used to talk almost every day through skype.

Nov 2017, my mother got diagnosed with Breast cancer and it was a devastating blow to my whole family, I have personally visited my mother in Toronto a few times because I can being PR of Canada and I am about to get my citizenship soon, but knowing the refusals we have had previously we did not want to try to apply for TRV for my wife.

Sept 2018, my mother did not respond well to her treatments and it was just unacceptable to us as a family that my wife cannot visit her mother in law and cannot be with me when we want to visit my mother during such difficult times.

We decided this time that we will use representation and hired a lawyer to support our case for a TRV as we genuinely do not have the interest at this stage after the refusals to live in Canada atleast until the near future.

5th Application - Nov 2017 - Visitors Visa

We prepared an application showing all our previous refusals, statements, character references, sworn affidavits, strong bank statements showing close 10,000 CAD for a period of visit for 3 months, bank statements of my family and letters confirming that will support my wife as well in case additional funds are required; letters from hospitals, doctors and health reports showing my mothers health and a letter from the lawyer addressing the rule book that the Canadian authorities can request for a bond from my wife to guarantee her exit at the end of her stay.

All these documents were submitted and we have received a refusal letter again stating only one point that the visa officer is not convinced on the purpose of visit.

We are absolutely baffled, devastated and disappointed on the last refusal and have completely lost all hopes on our case and have been recommended by our Lawyer to file an appeal with the federal courts as the refusal seems very unjust based on all the documents that have been provided.

If you have taken the time to read this through I am very grateful to you and request some advise and guidance on the following points, I have already requested for the ATIP notes and waiting for it:

A) Does this case sound like a case that should be taken for Appeal?
B) How long is a processing time of Appeal as we are very time critical at this stage?
C) Should I be contacting any Ambassadors at the local embassy or any MP's for this case that provide support?
D) Has anyone had a success on appealing an TRV or do you know anyone who has been successful?
E) What real options do me and my family really have?

I really hope that I can get some valuable advise, as we are really pressed on time and very lost on the step forward.

Thanks,

Unfortunately I don't think you will get much help here or any first hand experiences. Federal Court appeals for TRVs aren't that common and I don't know if we have any active members of the forum who have gone through this process (if we do, hopefully they will comment). To the best of my knowledge the appeal process takes 3-4 months.

Have you tried searching the CanLII Federal Court case database for cases similar to yours? This might give you a better idea of your chances of success. Here's the link:

https://www.canlii.org/en/ca/

Here are the results if you search on the term "temporary resident visa". Of course these are the cases that mention this phrase - that doesn't mean they are similar to yours.

https://www.canlii.org/en/ca/#search/jId=ca&text=temporary resident visa&origJId=ca

 

[Bryanna]

Dear All,

I am seeking for some assistance or cases of success where an appeal has been made over an TRV and it has been granted.

My wife has got her 5th refusal over a course of 4 years and I have listed the details below:

First Application - Sept 2014 - Visitors Visa

Refused as the letters of invitation provided were not complete with all details and funds were not enough hence was refused and the overall application was weak.

We were only dating at that time and had zero experience of online applications which was our mistake.

Second Application - Dec 2014 - Visitors Visa

This time round we changed the whole application to her visiting Canada on her own without the invitation letter but showed enough funds in her statements.

Third Application - Nov 2015 - Study Permit

After some time had passed, we decided probably best to move to Canada and letting her study while I work and provided all possible documents in terms of support from her Family our finances including paying 12 months tuition in advance etc.

No clear reason of refusal even on ATIP notes.

Fourth Application - Jan 2016 - Study Permit

As soon as we got the previous refusal we were not exactly sure about the reason for the refusal and thought that they needed a letter to state that she will get a job back in dubai and we need provide additional documents such as our attested property deeds to solidify our details which we provided and yet it was refused - visa officer stated that the intentions of visit dont seem to be clear.

At this point we dropped the idea of going to Canada completely because we just couldnt get passed the Visa officers and it was extremely stressful and financially draining to continue hence we let it go.

March 2017, me and my wife tied the know with my family who resides Canada come down to visit us and it was an amazing time for my family since this was the first time my family physically met my wife - I know this sounds crazy but given the visa problems it was just never possible for my parents to meet my wife physically though they used to talk almost every day through skype.

Nov 2017, my mother got diagnosed with Breast cancer and it was a devastating blow to my whole family, I have personally visited my mother in Toronto a few times because I can being PR of Canada and I am about to get my citizenship soon, but knowing the refusals we have had previously we did not want to try to apply for TRV for my wife.

Sept 2018, my mother did not respond well to her treatments and it was just unacceptable to us as a family that my wife cannot visit her mother in law and cannot be with me when we want to visit my mother during such difficult times.

We decided this time that we will use representation and hired a lawyer to support our case for a TRV as we genuinely do not have the interest at this stage after the refusals to live in Canada atleast until the near future.

5th Application - Nov 2017 - Visitors Visa

We prepared an application showing all our previous refusals, statements, character references, sworn affidavits, strong bank statements showing close 10,000 CAD for a period of visit for 3 months, bank statements of my family and letters confirming that will support my wife as well in case additional funds are required; letters from hospitals, doctors and health reports showing my mothers health and a letter from the lawyer addressing the rule book that the Canadian authorities can request for a bond from my wife to guarantee her exit at the end of her stay.

All these documents were submitted and we have received a refusal letter again stating only one point that the visa officer is not convinced on the purpose of visit.

We are absolutely baffled, devastated and disappointed on the last refusal and have completely lost all hopes on our case and have been recommended by our Lawyer to file an appeal with the federal courts as the refusal seems very unjust based on all the documents that have been provided.

If you have taken the time to read this through I am very grateful to you and request some advise and guidance on the following points, I have already requested for the ATIP notes and waiting for it:

A) Does this case sound like a case that should be taken for Appeal?
B) How long is a processing time of Appeal as we are very time critical at this stage?
C) Should I be contacting any Ambassadors at the local embassy or any MP's for this case that provide support?
D) Has anyone had a success on appealing an TRV or do you know anyone who has been successful?
E) What real options do me and my family really have?

I really hope that I can get some valuable advise, as we are really pressed on time and very lost on the step forward.

Thanks,

Short advice:
1. Are you living in Canada and do you meet RO?

2. Your wife must not reapply for another TRV

3. Appeals will not work. Your answer to this issue lies in the answer to Question 1

 

[mohibelani]

Unfortunately I don't think you will get much help here or any first hand experiences. Federal Court appeals for TRVs aren't that common and I don't know if we have any active members of the forum who have gone through this process (if we do, hopefully they will comment). To the best of my knowledge the appeal process takes 3-4 months.

Have you tried searching the CanLII Federal Court case database for cases similar to yours? This might give you a better idea of your chances of success. Here's the link:

https://www.canlii.org/en/ca/

Here are the results if you search on the term "temporary resident visa". Of course these are the cases that mention this phrase - that doesn't mean they are similar to yours.

https://www.canlii.org/en/ca/#search/jId=ca&text=temporary resident visa&origJId=ca

Hi Scylla,

Thanks for your reply. The link is really help full.

I am talking to my lawyers and will post the update on what are the next steps recommended by them.

Thanks again.

 

[mohibelani]

Short advice:
1. Are you living in Canada and do you meet RO?

2. Your wife must not reapply for another TRV

3. Appeals will not work. Your answer to this issue lies in the answer to Question 1

Hi Bryanna,

I am not current residing in Canada but have met all my RO over the last few years and will be applying for my citizenship as well in the next few months when I am back in Canada.

For your last point - have you had any experience through which you believe that a appeal in my case wont work?

Thanks,

 

[Bs65]

Just for clarification in case I missed it has the OP ever put in a spouse PR application in all this time as opposed to just applying for a TRV or due to living outside Canada more than in has this not been an option ?

 

[canuck78]

It seems like most of these refusals are justified. Your wife was never a genuine visitor or student. Her intent was to move to Canada with her husband or boyfriend. This would have been easily solved by remaining in Canada and sponsoring her under outland spousal sponsorship.

 

[mohibelani]

Just for clarification in case I missed it has the OP ever put in a spouse PR application in all this time as opposed to just applying for a TRV or due to living outside Canada more than in has this not been an option ?

Hi Bs65,

No I haven’t applied for a Spousal PR as yet as our plans to move to Canada have not been finalised hence we have not taken that into consideration.

Thanks,

 

[mohibelani]

It seems like most of these refusals are justified. Your wife was never a genuine visitor or student. Her intent was to move to Canada with her husband or boyfriend. This would have been easily solved by remaining in Canada and sponsoring her under outland spousal sponsorship.

Hi Canuck78,

I do not agree with your statement as I am not sure you understand the point of view through which we have applied for her Visas.

A) the first 2 visit visa applications were for my then girlfriend to visit my family since we were taking it to the next step; which never materialised;
B) the study permit applications had the intention for her to move to Canada however we were not married and since they were refused we dropped the idea for her to move and hence never applied for Spousal sponsorship;

In my current position I just need the flexibility of my wife to come to Canada to visit my mother as and when we need it given the condition of her health, it does not make sense to have my mother travel to see us provided the situation. So I would genuinely ask, if you do not have something constructive to say or provide any information that helps, please refrain from making the comments that you have made without full knowledge on someones situation.

Thanks,

 

[Bryanna]

For your last point - have you had any experience through which you believe that a appeal in my case wont work?

First, your Canadian immigration lawyers (not paralegals or immigration consultants nor lawyers outside Canada) would need to file an Application for Leave and Judicial Review at a Federal Court. This is a 'Judicial Review' and not an Appeal.

You have 60 days to file an application for a Judicial Review. Based on your first post, it seems you are within the time limits to do so.

Now, here are the key points:
1. The Federal Court will examine whether or not the process followed was fair and reasonable in determining the decision (TRV refusal here). If allowed, the court will allow for a 'redetermination'.

2. The chances of success of a Judicial Review will depend on the facts of the case and the original application. Note: Your lawyers cannot submit any new evidence.


It is precisely due to these two reasons that Judicial Reviews are largely NOT successful as it is difficult/almost impossible to prove that due process was not followed and/or the original visa application had the merits for a visa

 

[canuck78]

Hi Canuck78,

I do not agree with your statement as I am not sure you understand the point of view through which we have applied for her Visas.

A) the first 2 visit visa applications were for my then girlfriend to visit my family since we were taking it to the next step; which never materialised;
B) the study permit applications had the intention for her to move to Canada however we were not married and since they were refused we dropped the idea for her to move and hence never applied for Spousal sponsorship;

In my current position I just need the flexibility of my wife to come to Canada to visit my mother as and when we need it given the condition of her health, it does not make sense to have my mother travel to see us provided the situation. So I would genuinely ask, if you do not have something constructive to say or provide any information that helps, please refrain from making the comments that you have made without full knowledge on someones situation.

Thanks,

Simply pointing out that your appeals are actually very common and could be easily justified. You seem to feel that CIC has treated you extremely unfairly. Your forms of refusals are seen daily on this forum. Your last refusal is simply due to the fact that a spouse is rarely considered a visitor to Canada especially if you have recently spent a lot of time in Canada. You could apply for spousal sponsorship faster than going to a Judicial review and it would be less expensive since you don't need a lawyer. Immigration programs are not in the business of making it easier for couples to spend time together or for families to meet.

 

[jddd]

Hi Bryanna,

I am not current residing in Canada but have met all my RO over the last few years and will be applying for my citizenship as well in the next few months when I am back in Canada.

For your last point - have you had any experience through which you believe that a appeal in my case wont work?

Thanks,

Piggybacking on Bryanna’s question here. You said you met RO. Just to clarify, how many days within the last 5 years have you remained in Canada physically? Sorry, just a bit confused with “met my RO over the last few years” answer. Hoping for specifics, between December 2013 to December 2018, how long have you physically been in Canada?

Also agree with Bryanna on the judicial review process. It is very hard to prove that the visa officer rejected the TRV unlawfully, especially with 2 former records of an application for a study permit. Just because we truly do not intend to continue on with a path doesn’t mean IRCC will believe us.

 

[Bryanna]

Piggybacking on Bryanna’s question here. You said you met RO. Just to clarify, how many days within the last 5 years have you remained in Canada physically? Sorry, just a bit confused with “met my RO over the last few years” answer. Hoping for specifics, between December 2013 to December 2018, how long have you physically been in Canada?

Based on the OP's posts, I guess he has not met RO. He is probably unable to sponsor his wife for PR even if he moves back to Canada. Hence, the TRV option.

Regarding the previous refusals (based on his post):
Refusals #1 and 2: No strong ties + inadequate finances

Refusals #3 and 4: It seems the OP had declared his relationship either directly/indirectly to IRCC by that time by way of the evidence/documents for the study permit applications. This probably lead to concerns of wanting to get married in Canada + circumvent the PR processing time.

Refusals #5: OP was married, but no spousal PR application. Not met RO(??). Also, it would seem like his wife was applying as a caregiver to his mom which is considered as working illegally as a visitor/TRV


The OP has taken legal advice on this matter. Nonetheless, realistically speaking, it would be easier/faster to apply for spousal sponsorship once he is back in Canada (assuming he meets RO) instead of appealing or reapplying for another TRV

 

[jddd]

Based on the OP's posts, I guess he has not met RO. He is probably unable to sponsor his wife for PR even if he moves back to Canada. Hence, the TRV option.

Regarding the previous refusals (based on his post):
Refusals #1 and 2: No strong ties + inadequate finances

Refusals #3 and 4: It seems the OP had declared his relationship either directly/indirectly to IRCC by that time by way of the evidence/documents for the study permit applications. This probably lead to concerns of wanting to get married in Canada + circumvent the PR processing time.

Refusals #5: OP was married, but no spousal PR application. Not met RO(??). Also, it would seem like his wife was applying as a caregiver to his mom which is considered as working illegally as a visitor/TRV


The OP has taken legal advice on this matter. Nonetheless, realistically speaking, it would be easier/faster to apply for spousal sponsorship once he is back in Canada (assuming he meets RO) instead of appealing or reapplying for another TRV

That’s what I was thinking. But OP says he is applying for citizenship in a couple of months when he returns, so I thought maybe he spent 3 years in the last 5 years here? But when you look at the timeline he provided, I don’t know how he could meet the physical amount of time for citizenship or even RO and that this may precisely be a strong reason for refusal of his wife’s TRV. Completey agree that he has to come back to Canada, meet RO and sponsor his wife would be easiest.

 

[mohibelani]

Hi All,

Just wanted to post an update - since we went ahead with Judicial review and have come out successful.

We reached stage 2 where the government lawyers wanted to settle after our arguments were submitted - we have since filed a notice of discontinuance and our application is being sent over to another visa officer for review, and still waiting on confirmation but seems like it is going to another visa office as well - will hear on the last part soon and post an update.

Also for the questions regarding me meeting my RO - I have been living between Canada and the UAE equally which has helped me meet my RO, we did not apply for my wifes spousal PR as we were not yet ready to move back completely after the refusals for her study permit hence we have not done that as yet. We wanted the visitors visa given the circumstances of my parents and my wife being the only one excluded when we have an emergency - hope that provides clarity.

I will keep everyone posted on the developments and I genuinely hope anyone in a similar situation see success in their applications.

Thanks,