My brothers sponsorship got rejected

[computergeek]

Start by reading the IAD site. http://www.irb-cisr.gc.ca/Eng/tribunal/form/Pages/index_iad.aspx - this gets you to the appeal forms.

Since you have an error in fact, it is likely that you will be successful in your appeal. It just takes time.

 

[ciako]

My counsel advised me that I got 60 days to appeal the decision made, but the forms I in the link you provided says that I only got 30 days to appeal.What should I believe now?

 

[canadianwoman]

Believe the forms. Send in the appeal form as soon as possible.
When you send in the form stating you want to appeal, that is all you have to send then, so there is no reason to wait anyway. You send in your evidence later.

 

[computergeek]

I'd tend to believe the forms as well. There are several different potential deadlines: 15 days for an application for judicial review of an inland rejection, 30 days for an IAD application for an outland rejection in sponsored family class, 60 days for an application for judicial review of an outland rejection, and 60 days for an IAD application for a residency obligation decision. There may be others.

I suspect the issue is that the OP is beyond the 30 day mark, in which case an IAD appeal is no longer allowed (at least not as I understand it). Perhaps someone else has information to the contrary.

Here is what I found on the IAD website:

What happens when a person appeals a sponsorship refusal?

The sponsor has 30 days after the refusal to make an appeal to the Immigration Appeal Division (IAD). The appeal will be heard by a member (decision-maker) following the tribunal process. Some sponsorship appeals go through an Alternative Dispute Resolution (ADR) process. A dispute resolution officer (usually a member of the IAD) encourages the parties to resolve the appeal without a full hearing.
If the appeal is allowed, CIC will resume processing the sponsorship application or it may challenge the decision of the IAD by applying to the Federal Court of Canada for leave for judicial review. It is possible for CIC to refuse the application on other grounds.
If the appeal is dismissed, the sponsor may apply to the Federal Court of Canada for leave for judicial review.
The Federal Court will either dismiss the application by CIC or the sponsor or return the case to the IAD for re-hearing.

http://www.irb-cisr.gc.ca/eng/brdcom/abau/faq/Pages/index.aspx#iadfaqs

If you are beyond the 30 days, it would seem you have a couple options:

- Hope that the VO reopens your file based upon the material and information that you provided, in which case the decision ceases to be final (and thus isn't even ripe for appeal).
- File the IAD appeal, arguing that they should allow the appeal even though it is not timely (e.g., because this was a simple factual error and you promptly responded to the VO and thus the decision wasn't "final"). If it is rejected, you could try to request judicial review (there is a reasonable argument of procedural unfairness to the idea that the VO could screw up so fundamentally, you could draw their attention to the error and yet they could refuse to reopen the case.)
- File a new application, noting the previous refusal and pointing out the previous refusal's grounds were erroneous, that you attempted to obtain correction but the VO failed to reconsider, the IAD appeal deadline had passed and thus you are filing the new application. Be VERY clear on documenting the facts that the original refusal was erroneous.

There may be others, but a competent immigration attorney should know. If the IAD appeal deadline has passed based upon information from the OP's attorney, I'd suggest that the attorney has now failed the "competency" test. You MIGHT have grounds to file a complaint against said attorney (this is a fairly egregious error) but that wouldn't help the original case move forward.

 

[ciako]

Thank you to both of you Comp geek and Canadian woman. Can you advise of any good immigration lawyers you know of ?

 

[ciako]

Got your email thank you Comp geek.

 

[ciako]

Hello all.

My brother didn't receive any letter from the immigration about his refusal even though in the CIC website it says they will receive a letter regarding this decision.any one knows why?

 

[ciako]

Immigration office in home country didn't respond to my letter where I was asking for reconsideration of their decision.I am appealing the decision. What happens when you appeal? What is the procedure?How long will it take from hereon? Anyone knows? Please let me know.

 

[computergeek]

Immigration office in home country didn't respond to my letter where I was asking for reconsideration of their decision.I am appealing the decision. What happens when you appeal? What is the procedure?How long will it take from hereon? Anyone knows? Please let me know.

This is actually described on the court website and also on the CIC website. Here is my synopsis:

- File Notice of Application for Judicial Review; indicate "written reasons NOT received"; pay $50 fee
- Within 30 days, you will receive the "written reasons" (basically copies of your CAIPS notes usually) - this is triggered by the Registry issuing a "Rule 9" letter to CIC
- Within 30 days of receiving the written reasons you must file your "Application" - these are the legal arguments, your affidavit and any supporting materials
- Within 30 days of your filing your written application, the government ("respondent") must respond to your written argument or agree to allow your application.
- Within 10 days of the government's response, you may file your reply
- After all documents are filed the court will consider your application. You will be advised of their decision in writing. If they refuse to allow your application, they probably will not tell you why. If they allow your applciation, they will advise you of the hearing date and provide you with the trial order (basically all the intermediate deadlines for the various filings leading up to it.) Court rules require that this be 30-90 days after the order granting judicial review.
- You have your hearing. At some point the Court will issue their decision - it could be AT the hearing, or it could be months afterwards.

The only step here that doesn't have a time bound is the time for them to consider your application (I'm at 7 weeks on mine, which seems unusually long.) Some are decided in as little as 3 days. 3 weeks seems to be typical. MOST applications are denied, but then again most are never completed (no application is filed or no reply is filed.)

From the basic facts you have outlined in YOUR case, I suspect the respondent (CIC's lawyers) will allow your review, as (at least as far as you have presented the information) the facts in your case do not support the decision of the visa officer.

If you are successful with judicial review, your application is sent back to CIC for re-evaluation by a different visa officer. Typically this will mean they ask for another round of police clearance letters and medical examinations, but (especially in a case such as yours) you have a decent shot at completing the application.

I assume you have a lawyer representing you?

 

[ciako]

Yes one of the guys you suggested.Thank you replying.

 

[ciako]

My sponsorship application status has been completely removed from CIC website. What does it mean?

 

[ciako]

I have no idea.

 

[computergeek]

My sponsorship application status has been completely removed from CIC website. What does it mean?

I'm assuming your attorney has filed a judicial review application.

One thing litigation (e.g., a judicial review application) does is forces the program manager to review your case specifically. For example, in virtually every case of mandamus I can find, the original issue has already been resolved by the time the oral hearing is scheduled and that is because CIC get's their butts in gear once your case is subject to litigation. What this suggests to me is that someone has pulled it out of the e-cas system, perhaps because they are completely reviewing your file.

Do you know if your application has been filed? If so, you should be able to find your case on the docket system (http://cas-ncr-nter03.cas-satj.gc.ca/IndexingQueries/infp_queries_e.php) using your name. That will in turn give you your file number (that's how I usually look up my own case... over two months now without a decision on my application.) It also shows you every entry in your case with the court.

The important question is whether or not the respondent (Justice Canada on behalf of CIC) has filed an appearance (indicating they will object to your application) or if you have filed your application brief (30 days after the Rule 9 response) if they have filed their response brief (due 30 days after your initial application). If they have failed to file a notice of appearance (indicating they will not contest your JR application) or they have failed to file a response (indicating they haven't presented any arguments to the court as to why your application shouldn't be granted) or they have assented to your judicial review application (which DOES happen) then I'd expect the court to decide on your application (and presumably they would decide favourably, given the facts you've outlined.)

But I'd take the removal from e-cas as a sign that someone at CIC is actively (or has actively) reviewed your case.

 

[ciako]

Thank you comp.geek for that info. Yes my counsel has filed for appeal within 30 days.I guess you right on your assumptions.I will go and check the site you are telling me about.

 

[computergeek]

Did your attorney file an appeal with IAD, or a judicial review application with the Federal Court?