?A lot of effort goes into an application for Canadian
immigration/non immigration purposes. Whether it is a study or work permit, or application
for permanent residence, these applications can take months of preparation and
document collection, significant government processing fees, and more months of
waiting for a response.
So, what happens if after all this time and money, your application
gets refused? Well, it is important to know that a first refusal is not always
a final refusal.
There are essentially two options available to you if your Visa application
gets refused.
The first, is a request for reconsideration, which will be addressed
in this post. The second option, is bringing an application for leave and
judicial review to the Federal Court, which is slightly more involved, and will
be discussed in a later post.
Authority for being able to reconsider a refused application
A request for reconsideration is basically an informal
request that can be submitted to the decision-maker of a refused application
after the refusal decision is received. It is an opportunity for an applicant
to either point out a mistake or oversight committed by the decision maker, or
advise the decision maker of new evidence which was not available at the time
when the refusal was made.
The ability to request reconsideration has existed for
several years. The authority to request reconsideration, and have your request
considered by a visa officer comes from the case Kurukkal v. Canada (MCI) .
In Kurukkal, an application for permanent residence on
humanitarian and compassionate grounds (H&C grounds) was refused. The
applicant wrote back to the officer who refused the application and asked him
to reconsider. The officer refused on the basis that the final decision was
made, and that he, the decision-maker, had no more authority on the matter (in
latin functus officio).
At the Federal Court of Appeal, it was held that this
principle of functus officio does not strictly apply in non-adjudicative
administrative proceedings. This means that the decision maker has the
discretion to review a request for reconsideration and decide whether to grant
the request or not.
In a later case, Marr v. Canada, the discretion that was granted in
Kurukkal was broadened with an observation by Justice Zinn, where he writes:
[57] A final observation, basic fairness and common sense
suggest that if a visa officer, within days of rendering a negative decision on
an application that has been outstanding for many years, receives a document
confirming information already before the officer that materially affects the
result of the application, then he or she should exercise his or her discretion
to reconsider the decision. Nothing is served by requiring an applicant to
start the process over and again wait years for a result when the application
and the evidence is fresh in the officer’s mind and where the applicant is not
attempting to adduce new facts that had not been previously disclosed.
Stricto sensu, in the immigration context, visa officers
have the discretion to review and accept requests for reconsideration. Since
they have that discretion, it makes sense that in the context of a refusal, and
especially in the context of those refusals which are particularly egregious or
obviously incorrect, applicants should definitely be requesting reconsideration
before accepting their refusal decision as final.
Not only do officers have the discretion to review requests
for reconsideration when they are received, but in certain circumstances, the
officers are instructed that they must consider reconsideration requests and
decide whether or not to exercise their discretion to grant the request. For
example, in the context of a spousal sponsorship application, and with respect
to Pre-Removal Risk Assessment applications, officers must consider these
requests. In other applications, such as in the context of H&C
applications, officers may exercise this discretion. This option to reconsider
is also expressly granted in the context of federal skilled worker applications
in Canada.
Programs that expressly provide for reconsideration requests
Some refusals that are issued within specific programs will
actually advise you of your ability to request reconsideration. Take for
examples, applications through the Ontario Immigrant Nominee Program (OINP).
Their website states the following:
The Ontario Immigrant Nominee Program (OINP) gives
applicants an opportunity to seek a review or reconsideration of the refusal
decision of their application. The reconsideration process is in place to
provide applicants recourse to the refusal of their application should they
feel an error was made by the program in its assessment.
This is rather straightforward, and the OINP website
provides an email address where such requests should be sent and advises that
requests must be received within 30 calendar days of the date on the refusal
letter.
In the past, I have used this process to request
reconsideration, for example, of a refusal of a client’s application that was
refused because she did not include a certified true copy of a document that
was required (she submitted a photocopy of the document). I re-submitted the
application on my client’s behalf, included the requisite certified true-copy,
and requested (politely) that they continue processing the application. They
agreed, and our client is on the way to obtaining Canadian permanent residence.
Other programs where reconsideration is not explicitly
considered
However, even in those programs where a reconsideration
request process is not specifically contemplated, it still may make sense,
depending on your circumstances, to make that request.
The following are some examples of requests for
reconsideration that I have made:
? A refused permanent residence application where the
application was refused because the applicant did not include the original
police clearance certificate
? A refused permanent residence application where the
applicant neglected to include a valid police clearance certificate but was
able to get an updated one within one day of getting the refusal decision;
? A refused work permit application where the applicant was
refused on the grounds that he was the subject of an “enforceable removal
order” whereas his removal order was actually not technically enforceable;
? A refused work permit extension application where the
processing officer mistakenly concluded that the application was mailed after
the work permit expired, when it had actually been mailed before it expired;
? A refused study permit where the officer erroneously
concluded that person was applying for a Ph.D. instead of a Master’s degree,
and did not have the necessary prerequisites.
As you can see, you can ask for reconsideration if a
document is neglected, if the officer made an obvious oversight, or even if
additional evidence arose after the initial application was submitted.
Some of the above examples of requests for reconsideration
were successful, with the visa officer accepting the request and continued
processing the application. Some were unsuccessful and were returned with a
confirmation of the refusal. Nevertheless, it is important to know that this
option is available if you need it, and it is available for programs that do
not specifically contemplate requests for reconsideration in their guidelines
or filing instructions (like the OINP).
Sometimes making these requests can be complicated, and
every case is unique. For example, it is not always clear which officer to send
it to, or which office such a request must be addressed to. To ensure that you
are getting the best outcome, nothing replaces retaining an experienced and
qualified lawyer who can help guide your actions and give you good legal advice
in the circumstances.
If you have recently had an application refused, or have any
questions, it may assist you to consider reaching out to us to ask about your
options. Keep in mind that sometimes these requests are time-sensitive, so time
is of the essence.
At TAR Global Placement Consulting, we are happy to assist
with any and all matters relating to refusals of any immigration application,
and it always helps to have a a certified Canadian Immigration Consultant look
at specific circumstances and help figure out the best way for you to move
forward.????
President/CEO
Taiwo Roluga, B.Sc, M.A. (UK), PG D (Canada)
Regulated Canadian Immigration Consultant (R516184)
TAR Global Placement Consulting LTD
.........Canada awaits you!!
Nigeria: 10 Esomo
Close, Off Toyin St, Ikeja, Lagos
Canada: 754 Yates Drive, Milton L9T 0G2 Ontario Canada
T: +234 817 513 0415, + 234 817 513 0416, +234 817 513 0419
www.targlobalplacement.com
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