MY CASE HAS BEEN REFUSED NOW WHAT?

Introduction

A refusal of a case may mean many things. A refusal is an unpleasant fact of life in the practice of immigration law.  Where many practitioners’ work ends mine just begins.  I am a litigator. Usually if a client or practitioner finds themselves in my office is because something has gone wrong.  Dreams delayed and hopes sometimes crushed.  But from all this, often we find a way to challenge, to revive, to rescue - the refused file.  Yet, I depend on you to put me in a position to succeed.  As such, the following tips and preparatory steps are critical to life after a refusal.

5 Immediate Steps

1. THE REFUSAL: Take a breath and read the refusal letter closely.  Then put it down and read it again in an hour or two.  Ensure it relates to you, client ID numbers cross reference, names and dates make sense.  Look to see if you can find any errors of fact. 

2. TIME LINE/LIMITATION PERIOD:  Quickly identify the nature of the refusal.  In land, overseas, citizenship, a misrepresentation?  Different appeal periods apply – 15, 20 or 60 days.  This is critical to understanding the timeline under which you are operating.

3. MY ERROR – Look closely and determine if you committed an error in preparing and submitting the application.

4. ADVISE CLIENT – If you are a representative advise the client of the refusal and the areas of concern.  Further advise if is this is a case wherein you will be handling the appeal or sending it out to a specialist.  Timelines, potential errors and costs can be canvassed in a preliminary manner.

5. CALL THE LITIGATOR – Act as a liaison between the litigator and your client.  Understand appeal timelines, costs and immediate steps required.  Ensure you have a proper record to hand off to the litigator.  Ensure the litigator is well versed in these types of appeals and has a clear plan of action.  Oftentimes litigators will charge a fee for this initial assessment.       

Regardless of the ultimate disposition on a file it is best to utilize the following as safeguards:

Key Preparatory Steps for Lawyers, Consultants and you the client.

1. TABLE OF CONTENTS: When preparing submissions include a detailed Table of Contents of the enclosures numbering the corresponding pages (either in your submission letter or separately including supporting documents) identifying the same pages in your Table of Contents. A litigator and the courts appreciate a well prepared and organized application package.   It also ensures when CIC or CBSA vets the file you are in a position to cross check with your own records.

2. PROVIDE THE FULL FILE: Always provide the litigator with a copy of the entire file, including all opposing disclosure, i.e.: failed refugee claims as the Board is oftentimes using updated disclosure packages, POE notes, which are often helpful in extracting points of contention.

3. ATIP REQUESTS: Make it a habit to order a few ATIP requests as these are especially helpful in litigation.  With files taking years to process this information will be updated so one request may not be sufficient.  These allow the applicant an opportunity to know the case to be met before having to wait to review the Respondent’s Memorandum. It takes a great deal of time (between 30-90 days) to receive the ATIP packages and this is almost always too long to await receipt of same in preparing an Application Record for Federal Court.   Sometimes it is best to just order the CAIPS or FOSS in emergency circumstances as these can be produced much faster that the entire file. 

4. DOCKETING FILE: Always follow up any conversations with the Embassy, CIC Office or the Board with letters confirming conversations as it has often been the case where officers indicate they did not receive calls, etc or make the alleged statement. These will make it in to the file and be available in the ATIP request as well.

5. INTERVIEWS: Always request in person interviews if an officer is making credibility assessments.

6. CASE LAW: Look to case law for ‘language’ utilized by the Courts in making noteworthy decisions, i.e.: illegal de facto persons live in caregivers, work permits, etc.

7. REASONS: Always request full written reasons of the decision maker within your submission.

8. MANAGE EXPECTATIONS:  Although not anticipated or desirable, you must have the conversation with your client regarding a potential refusal before a refusal.  It at least provides a frame of reference for the client in the case of a negative decision.

9. RECONSIDERATION REQUESTS: Although requests for reconsiderations are often ignored or not considered on refusals, they are not ALWAYS ignored and can save your client the cost of litigation.  Although unlikely, still worth the letter.

10. KEEP CURRENT: Know the latest case law in the area you are dealing with to ensure you have the latest interpretation of the law as it affects your client. 

Conclusion

Therefore key steps that are mandatory on the preparation of any file will bolster the chances of success should a file be incorrectly refused.  Immediate steps after a refusal are essential to preserve a client’s rights.  Last, knowing the law in the first instance may bring calm to a stressful situation.  My case has been refused now what?  Now you know the “Now what”!