Please help with extension question

[computergeek]

My experience is consistent with Rob_TO's experience.

When we submitted my application, I was living in Canada with my spouse. I looked at both options and consulted with my own experienced immigration attorney (the one who successfully receive leave to argue before the court after my first application refusal) and he confirmed that I had the option to apply inland or outland. In the end, the processing time for my specific case would have been the same, but at the time I submitted the application outland was supposed to be much faster than inland (less than a year versus 20 months). CPP-O processed my application and once approved forwarded it to LA for issuance of the COPR (they didn't start issuing COPRs from CPP-O until about two months later.)

This seems to be a common source of confusion, unfortunately. It is a statutory requirement of the "spouse/partner in Canada" class that the spouse/partner be living with the sponsor in Canada. There is no corresponding statutory requirement for the "spouse/partner abroad" category, but proving the non-existence of something is challenging to do.

As for applying a second time after a failed application the critical point is that the applicant must resolve whatever the issue was the first time around. If you just reapply without a change in circumstances it is likely that it will be refused. I know of a case where an applicant was approved the first time around and then refused the second time around (the first approval ultimately failed because CIC couldn't get in touch with the applicant). My own attorney argued the (successful) challenge to that second refusal, essentially making this point (albeit in the opposite direction from the usual logic): if nothing has materially changed, a new officer should not reasonably be reaching a different decision.

Most failed Inland applications are never reviewed, unfortunately. That 15 day window and the fact one must go to Federal Court serves as a rather high barrier to the review process. That doesn't mean the decision was right but it does mean that inland visa officer's have far less case law to guide them - and they're not used to being slapped around by the Federal Court. Outland officers on the other hand DO get challenged more frequently before both the IAD and Federal Court so they have more legal review to guide their own processes.

Bottom line: if you are refused inland and do not go to Federal Court but instead apply via the Outland process, unless something has changed you are unlikely to be successful the second time around. But a new officer isn't bound by the previous decision and may reach a different conclusion. This is far more likely to occur if the facts of the case are different.

 

[O_guy]

I looked at both options and consulted with my own experienced immigration attorney (the one who successfully receive leave to argue before the court after my first application refusal) and he confirmed that I had the option to apply inland or outland.

Bottom line: if you are refused inland and do not go to Federal Court but instead apply via the Outland process, unless something has changed you are unlikely to be successful the second time around. But a new officer isn't bound by the previous decision and may reach a different conclusion. This is far more likely to occur if the facts of the case are different.

If canuck_in_uk is right, why did you need a lawyer to argue your case before the court after your inland application was refused? According to canuck_in_uk, if your inland spouse sponsorship is refused, you can just turn around and submit outland application. THAT IS THE ARGUMENT HERE!!!

Bottom line: If you are refused inland there is no appeal process and you cannot just "reapply". And for this Federal Court which you speak off, the lawyer I consulted with informed me that the odds of taking CIC to Federal Court and winning is worse than the odds of winning the lottery. You were lucky enough to have a good lawyer who argued your case and got it overturned, which is the only reason why you were told you can reapply inland or outland (basically you were given a do-over). This is very different than what canuck_in_uk was saying which is if you are denied inland application, you can simply submit outland application.

This is the last time I'm writing on this silly threat and my last comment is, if you are denied inland spouse sponsorship, there is no appeal process. The only option you have is taking the case to Federal Court which usually does not overturn the decision of CIC. However, if you are refused outland application, there is appeal process which does not involve the Federal Court.

 

[computergeek]

If canuck_in_uk is right, why did you need a lawyer to argue your case before the court after your inland application was refused? According to canuck_in_uk, if your inland spouse sponsorship is refused, you can just turn around and submit outland application. THAT IS THE ARGUMENT HERE!!!

I never said my first application was an inland application. I merely explained my own experience with the process. My first application was an A38 refusal on an FSW application. I met my (now) spouse shortly before I filed the FSW application but due to an issue that they found in the medical examination they refused my application - despite providing clear evidence of 100% existing insurance coverage in place in Canada, including a non-discretionary health savings trust through my employer of 17 years (now 19 years). We agreed to do sponsorship while the leave application was making its way through the process.

Bottom line: If you are refused inland there is no appeal process

You may not LIKE Federal Court, but it is an appeal process. It's not an appeal process via the IAD. So your statement is not strictly correct, but it is a commonly held position unfortunately. I wish more inland refusals were challenged in Federal Court because I've seen some rather egregious decisions, but not enough of them get challenged because it is an expensive process and not one conducive to pro se representation.

and you cannot just "reapply".

There is no legal barrier to sending in a new application. Thus, you can reapply. However the odds of success are low if the circumstances of the original refusal have not changed. The concept of functus officio only narrowly applies in immigration cases.

And for this Federal Court which you speak off, the lawyer I consulted with informed me that the odds of taking CIC to Federal Court and winning is worse than the odds of winning the lottery. You were lucky enough to have a good lawyer who argued your case and got it overturned, which is the only reason why you were told you can reapply inland or outland (basically you were given a do-over).

We had an excellent case. However, JR was not granted - I discontinued the case when CIC granted the second (sponsored outland) application in record time and contrary to their own rules (it should have taken an additional 12-18 months). While there's no official finding in my favour, leave was granted and the Justice Canada attorney personally interceded to get the sponsored application completed very quickly - 3.5 months from sponsor approval to landing date (against the Buffalo closure background). I maintain that the JC attorney would not have interceded unless she expected me to get JR; she has a number of negative decisions in the A38 area and the last thing she needed was another one, which seemed very likely given the circumstances.

Actually, I put the odd of winning JR at 4% across all cases. FSW cases (like mine) and inland sponsored cases do have better odds because they have not had the benefit of review. Refugee cases have the worst odds and pull down the average.

Approximately 20% of ALL applications are granted leave. Approximately 20% of all cases heard are found against CIC. In my case (A38) the ratio for the second part is quite different (CIC wins 25% of such cases and loses 75% which is why they assign such cases to specialists in these cases).

4% is still not as bad as the odds of winning the lottery. http://www.cbc.ca/news/story/2009/11/09/f-lotteries-what-are-the-odds.html

1 in 14,000,000 (the odds of winning 649, which is much better than Lotto Max) is vastly smaller than the odds of winning against CIC in Federal Court. But I do agree that your odds are much better when you have an attorney with a good track record in Federal Court.

This is very different than what canuck_in_uk was saying which is if you are denied inland application, you can simply submit outland application.

Strictly speaking, his statement is correct. I wouldn't recommend doing so unless the basis of the refusal has been resolved. If the concern is that it is an MOC and the couple move to the foreign country and reapply the circumstances have often changed sufficiently for a new officer to reach a different decision.

This is the last time I'm writing on this silly threat and my last comment is, if you are denied inland spouse sponsorship, there is no appeal process. The only option you have is taking the case to Federal Court which usually does not overturn the decision of CIC. However, if you are refused outland application, there is appeal process which does not involve the Federal Court.

Both JR and IAD are appeals processes. Given the choice, I'd take the Federal Court over IAD - 6-9 months to a decision versus 24-30 months (Toronto IAD). This is especially bad for PRs sponsoring a spouse because those 24-30 months are spent apart.

The odds of inland refusal are 6%, the odds of outland refusal are 17% (CIC published these numbers last year when they announce the conditional PR because they basically asserted that these were mostly MOCs). That's also worth considering.

I do agree with O_guy that simply filing a new outland application after an inland refusal is a low yield approach. Far better to look at why they refused - which you can do by filing an ATIP request - and address it. If they really did make a serious error, then challenge it. Don't look at these random odds that show up with lots of poor quality cases. Focus on your own case and find someone who can argue it persuasively.

 

[Rob_TO]

Before you tell me I'm wrong, read all the postings in this threat.

You were stating "People who met in Canada and lived together in Canada during their entire relationship have no basis to submit outland sponsorship application. ". This is factually wrong any way you put it. There is no rule whatsoever that says a couple that has lived entirely in Canada, must or should apply inland. In fact CIC states the opposite, that couples considering inland should actually consider outland instead. Say this any way you want, but your claim was wrong.

Bottom line: If you are refused inland there is no appeal process and you cannot just "reapply".

Again this is factually wrong. You have every right to re-apply outland immediately and there are no rules at CIC preventing you from doing this. Read all the CIC documents you want, you won't find any wording which states you can't apply outland immediately after being refused inland. Or ask your lawyer to point you to where it says you can't do this... he also won't be able to.

The real question in whether you will be approved or not upon outland review, since the VO will have access to the reasons your inland app was rejected. As Computergeek clearly stated, this depends on if the reason for refusal has been rectified.

i.e. if the inland VO thought your application was a marriage of convenience or fraudulent, and you simply applied outland without submitting any more significant proofs to prove otherwise, the outland app would just be rejected again.

However say the inland VO was rejected due to the VO not being satisfied of proof of common-law/cohabiting for 12 months. By the time the inland application is rejected and you apply outland, enough time may have passed so now more evidence is available to prove common-law. If the outland VO is satisfied you are now a genuine common-law couple, then they could approve the previously rejected application.

So what you are saying is if you apply immediately after being rejected for inland you are looking at just another rejection... but give it enough time and try again outland, and the results could indeed be different.

 

[O_guy]

Neither one of you has even been denied inland application because neither one of you has ever submitted inland application. And yet, you are making statements that are completely untrue about a process which you never went through and know nothing about.

Boys, this is very simple. If your inland spouse sponsorship application is denied, you cannot just apply outland and expect to get approved. You keep saying you can reapply if something changes. First of all, you cannot simply reapply. The only option you have after inland application is denied is taking your case to the Federal Courts. Secondly, do you think you will wake up one day and all of the sudden the facts of your relationship are different? It is not possible to reason with stupidity.

 

[Rob_TO]

Boy, go and read the entire discussion.

I've read it. Doesn't change the fact that you've made factually wrong statements that are not supported by any CIC documents or rules out there. If you were right, it would simply be as easy to prove as you pointing to the rule.

 

[O_guy]

I've read it. Doesn't change the fact that you've made factually wrong statements that are not supported by any CIC documents or rules out there. If you were right, it would simply be as easy to prove as you pointing to the rule.

What wrong statements did I make? Perhaps you misunderstood what I wrote. This is not Korean forum.

 

[computergeek]

It is not possible to reason with stupidity.

On this point we are in agreement.

 

[O_guy]

On this point we are in agreement.

All you can do is quote me and offer nothing further. And yet canuck_in_uk thinks you are an "expert" since you are "VIP member".

 

[Rob_TO]

What wrong statements did I make?

Wrong statement #1

People who met in Canada and lived together in Canada during their entire relationship have no basis to submit outland sponsorship application.

This is factually wrong, and i showed you as such directly from the CIC guide. If you feel otherwise, please point to the CIC wording that backs up your point.

Wrong statement #2

You keep saying you can reapply if something changes. First of all, you cannot simply reapply.

Again factually wrong. There is no rule in CIC guides at all that state you can not legally apply outland after being denied inland. Again, if you disagree with this than please find the specific rule that backs up your point and post a link to it for all to see.

You keep spouting off on things that only you and your lawyer seem to agree on, but are not backed up by ANY actual words or documents from CIC. I am going right from the CIC guides and operations manuals.

 

[O_guy]

Wrong statement #1
This is factually wrong, and i showed you as such directly from the CIC guide. If you feel otherwise, please point to the CIC wording that backs up your point.

Wrong statement #2
Again factually wrong. There is no rule in CIC guides at all that state you can not legally apply outland after being denied inland. Again, if you disagree with this than please find the specific rule that backs up your point and post a link to it for all to see.

You keep spouting off on things that only you and your lawyer seem to agree on, but are not backed up by ANY actual words or documents from CIC. I am going right from the CIC guides and operations manuals.

No, my comments are not wrong. They way you interpreted them is wrong. As I said in an earlier post in this thread, you can apply for whatever you want. It just takes money to submit an application. The issue here is approval. 32-year immigration attorney informed me that there has never been a known case of a couple being approved outland application after they were denied inland application. If you are denied inland application, your only option is taking the case to Federal Court. This fact will not change regardless of how many silly comments Rob_TO, Commputergeek, and canuck_in_uk make.

 

[Rob_TO]

No, my comments are not wrong. They way you interpreted them is wrong. As I said in an earlier post in this thread, you can apply for whatever you want. It just takes money to submit an application. The issue here is approval. 32-year immigration attorney informed me that there has never been a known case of a couple being approved outland application after they were denied inland application. If you are denied inland application, your only option is taking the case to Federal Court. This fact will not change regardless of how many silly comments Rob_TO, Commputergeek, and canuck_in_uk make.

Also don't forget your other wrong comment that people who establish their relationship and live in Canada have "no basis" to apply outland.

I would not be so naive to think your lawyer has actually personally looked at every single case that was rejected inland, later applied outland, and what the results were. He is most likely making a broad general statement about the slim chance there is of being successful. If you believe every word that comes out your lawyers mouth is completely factual... there's not much else to say on this.

There have been several people on this and other immigration sites posting their personal stories of being rejected inland and re-applying outland and being successful. If you choose to label everyone as a liar that has a personal story that doesn't match to your own view of how the system works, so be it. No wonder absolutely nobody here is backing anything you say.

 

[O_guy]

Also don't forget your other wrong comment that people who establish their relationship and live in Canada have "no basis" to apply outland.

A couple who is denied inland spouse sponsorship has no basis to just submit outland application and get approved. What do you think the basis would be? Do you think all of the sudden the facts of their relationship would change? Do you think they would say, "No, we didn't meet online as we had previously stated. We met at church"? Or do you think CIC doesn't keep track of previous applications?

I would not be so naive to think your lawyer has actually personally looked at every single case that was rejected inland, later applied outland, and what the results were. He is most likely making a broad general statement about the slim chance there is of being successful. If you believe every word that comes out your lawyers mouth is completely factual... there's not much else to say on this.

There have been several people on this and other immigration sites posting their personal stories of being rejected inland and re-applying outland and being successful. If you choose to label everyone as a liar that has a personal story that doesn't match to your own view of how the system works, so be it. No wonder absolutely nobody here is backing anything you say.

So, since you called me "naive" for believing what a man who has been immigration lawyer for 32 years said, what would you call yourself for believing what someone wrote in a forum.

 

[Need to be with Hubby]

You have insulted my intelligence for absolutely no reason. You are extremely rude. The Brits have rubbed off on you.

I read through the links you posted and they simply do not prove your point. Is English your second language? Anyway, what I'm telling you came from an experienced immigration lawyer whom I spoke to prior to my wedding. People who met in Canada and lived together in Canada during their entire relationship have no basis to submit outland sponsorship application. Furthermore, a couple who has been denied inland sponsorship has never been approved for outland sponsorship. Go and talk to actual immigration professional instead of insulting someone who has done nothing to you.

I disagree there are people who got denied inland and got approved outland