To appeal or to reapply?

[Harman167]

Hello guys your input will be greatly appreciated: I need your help!!

I sponsored my parents in 2014 and last week I got a letter that my application is refused due to low income in 2010
With an option to appeal I meet all the income requirement from 2011 until now so I was wondering if it’s worth it to appeal since I meet all the income requirement from 2011-2016 but just not 2010?

Is there sky chance of winning this appeal?

I consulted 2 lawyers and they said yes however I don’t know if I should or it’s s waste of time


Pls help guys???

Thank you so
Much!!!!

 

[Jaywill]

I know nothing about appeals but doesnt the parent sponsorship lottery have only about a 10% chance to hit?

 

[Harman167]

I know nothing about appeals but doesnt the parent sponsorship lottery have only about a 10% chance to hit?

Yes but I’m worried if I appeal and later it gets refused I will miss my chance this year too


I just don’t know if the appeal will be considered or not

 

[Jaywill]

Yes but I’m worried if I appeal and later it gets refused I will miss my chance this year too


I just don’t know if the appeal will be considered or not

Im not at all an expert :full disclosure

Re-entering the lottery =10% chance.

Appeal= if two lawyers recommend that option, i would infer that the odds in this course of action are much better than 10%

Appealing gets the case reconsidered again, whereas reapplying means 1 in 10 chance of being considered to apply again.

Again i am so new to this and by no means an expert.

 

[Buletruck]

Don’t waste your time with an appeal.....you didn’t meet LICO for one of the years prior to your applying. You were refused correctly. The requirement is specific and not flexible. There is nothing to appeal and if you do you it will most likely result in your appeal being dismissed.

 

[Harman167]

Don’t waste your time with an appeal.....you didn’t meet LICO for one of the years prior to your applying. You were refused correctly. The requirement is specific and not flexible. There is nothing to appeal and if you do you it will most likely result in your appeal being dismissed.

Even if I
Meet all the income requirements from-2011 -2016? They would not consider those 6 years?

 

[Buletruck]

The application is based on the years prior to the application date. So you needed to meet LICO for 3 years prior to applying. You didn’t in 2010, so the application was refused. Meeting LICO after the application date is irrelevant to the initial application.

 

[mikeymyke]

You shouldnt have applied if you didnt meet the income from 2010-2012 Actually, this whole thing could've been resolved had you applied a year later when you did meet the income

And you saw for yourself that showing income from the later years had no effect as expected

 

[scylla]

Even if I
Meet all the income requirements from-2011 -2016? They would not consider those 6 years?

There are no grounds for an appeal as you don't meet the minimum requirements to sponsor. You'll need to reapply. An appeal will be a waste of time and money - and will simply end in another refusal.

 

[Cross99]

The only way you cold win this appeal is on humanitarian and compassionate grounds (H&C). Here are some cases you could read up on:

1. https://www.canlii.org/en/ca/irb/doc/2007/2007canlii50475/2007canlii50475.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=1

2. https://www.canlii.org/en/ca/irb/doc/2012/2012canlii101413/2012canlii101413.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=3

3. https://www.canlii.org/en/ca/irb/doc/2016/2016canlii103550/2016canlii103550.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=4

As you will see, only one of these appeals was allowed. Whether any H&C conditions apply to your parents and will suffice in court is something only you can decide.

You should keep in mind that H&C sets a remarkably high bar as to what can be considered or not. While it is inappropriate to say that you appeal will, with all certainty, be denied the probability is pretty high. Do some further research, go through cases on CanLii and only then come to a conclusion as to if it is worth your time and money to file an appeal!

 

[Rob_TO]

The only way you cold win this appeal is on humanitarian and compassionate grounds (H&C). Here are some cases you could read up on:

1. https://www.canlii.org/en/ca/irb/doc/2007/2007canlii50475/2007canlii50475.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=1

2. https://www.canlii.org/en/ca/irb/doc/2012/2012canlii101413/2012canlii101413.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=3

3. https://www.canlii.org/en/ca/irb/doc/2016/2016canlii103550/2016canlii103550.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=4

As you will see, only one of these appeals was allowed. Whether any H&C conditions apply to your parents and will suffice in court is something only you can decide.

You should keep in mind that H&C sets a remarkably high bar as to what can be considered or not. While it is inappropriate to say that you appeal will, with all certainty, be denied the probability is pretty high. Do some further research, go through cases on CanLii and only then come to a conclusion as to if it is worth your time and money to file an appeal!

Also note the main reason the 1 case was allowed to be appealed, is because the judge found the sponsor's spouse's 2 parents that were previously sponsored and included in family size at time of application, were no longer considered family members for case of family size at time of appeal, so he allowed them to be removed meaning the sponsor then exceeded LICO for the reduced family size. Without this unique situation happening, there's a good chance this case would have ended in refusal also.

 

[Cross99]

There are a number of cases where such appeals have been allowed:

https://www.canlii.org/en/ca/irb/doc/2009/2009canlii84134/2009canlii84134.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=6

https://www.canlii.org/en/ca/irb/doc/2011/2011canlii90825/2011canlii90825.html?searchUrlHash=AAAAAQAecGFyZW50cyBzcG9uc29yc2hpcCBsb3cgaW5jb21lAAAAAAE&resultIndex=3

I only say that it is imprudent to simply state that an appeal is futile. We never know if any of these situations apply to the OP's case and would allow him to appeal successfully. Which is why I asked the OP to 'dig deeper.'

 

[Buletruck]

There are a number of cases where such appeals have been allowed:

A couple of quick observations

These decisions are both quite old and the original applications were processed under what seems to be different requirements. In both cases MNI only seemed to be required for 1year to apply.

In both cases, the parents were quite young and capable of working in Canada.

Both appeals took 2 years minimum for the decision to come down to allow the appeal. It’s going to come down to a decision on diminishing returns. Do you spend the money to appeal and wait 2+ years (with the current refugee exodus, potential rejections and appeals, I can see that timeline becoming significantly longer in the near future) to find out you might have a successful appeal or, as the OP has met LICO since 2011, apply again. If you wait for the results of the appeal, you are several years down the road before you can try again if the appeal fails.

 

[Cross99]

A couple of quick observations

These decisions are both quite old and the original applications were processed under what seems to be different requirements. In both cases MNI only seemed to be required for 1year to apply.

In both cases, the parents were quite young and capable of working in Canada.

Both appeals took 2 years minimum for the decision to come down to allow the appeal. It’s going to come down to a decision on diminishing returns. Do you spend the money to appeal and wait 2+ years to find out you might have a successful appeal or, as the OP has met LICO since 2011, apply again. If you wait for the results of the appeal, you are several years down the road before you can try again if the appeal fails.

It really is for the OP to decide what works best for him, appeal alone, appeal and apply for the lottery while waiting or simply apply again.

I think it is incorrect for us to assess the OP's situation based on assumptions and simply say "there is nothing to appeal."

 

[Rob_TO]

It really is for the OP to decide what works best for him, appeal alone, appeal and apply for the lottery while waiting or simply apply again.

I think it is incorrect for us to assess the OP's situation based on assumptions and simply say "there is nothing to appeal."

True with IRCC nothing is 100% guaranteed when it comes to appeals. However considering the successful appeals all seem to have been under old less stringiest income requirement rules, and that appeals can take years to process with very little chance of success in the end unless there is some actual H&C situation that the OP didn't mention... I agree that an appeal is probably a waste of time and they should concentrate on re-applying for lottery instead. But it's entirely up to the OP.

It is unknown how IRCC will roll out the new lottery. If they have more checks upfront, it may prevent someone with an active parents app from re-entering the lottery. We won't know until new rules are released next month. Also to get a lawyer for the appeal they'll need to put a considerable retaining fee down so need to decide if this is worth it.