Migration Law Immigration Lawyers
Application refused? Consider a request for reconsideration
By Adam Hummel / Immigration Lawyer
A lot of effort goes into an application for Canadian 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 immigration application gets refused.
The first, is a request for reconsideration, which will be addressed in this blog 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 a number of 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 this 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.
Simply put: 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 working 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 Macedonian language police clearance certificate, only the certified translation;
● 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 a lawyer to ask about your options. Keep in mind that sometimes these requests are time-sensitive, so time is of the essence.
At Mamann, Sandaluk & Kingwell LLP we are happy to assist with any and all matters relating to refusals of any immigration application, and it always helps to have a lawyer look at specific circumstances and help figure out the best way for you to move forward.