Slide Welcome to Vancouver’s Immigration Blog Practicing exclusively in the field of Canadian Immigration Law, I started Vancouver Immigration Law Blog to provide community resources and community support to those navigating Canada’s complicated immigration system. I am the Principal/Owner of Heron Law Offices, a boutique immigration and refugee law firm based in Vancouver and Burnaby, British Columbia. LEARN MORE Slide Visit My Firm Website - Heron Law Offices LEARN MORE Slide Follow Our Advocacy, Research, and Education Activities at Arenous Foundation LEARN MORE

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Three Things You Likely Don’t But Should Know About How IRCC Assesses Your Study Permit Application

#1 – Your Application is Decided Using a Microsoft Excel Spreadsheet

It might come as a surprise to you that IRCC utilizes the classic, but with some tech additions, software of Microsoft Excel to decide temporary resident applications.

The Officer essentially provides all the information about a client in a row with several columns (including working notes – more on this later). This allows them to process multiple applications utilizing one screen. There are also multiple clients that make up the constituent rows.

Each column within a row contains information regarding the Applicant’s name, age, purpose of visit, date of receipt of the application, citizenship of the client, and previous travel. It appears that some of this information is pre-assessed by a processing Officer, but much of it comes directly from the IMM forms.

You can see here how the pre-assessment notes show up with respect to the ‘verbose client information.’ Verbose client information appears to be information directly from the forms. This suggests that the pre-assessment plans a significant and important role in an application. While it is seemingly ‘blind’ one can see from the below that if you break it down to age, gender, marital status, and citizenship that many of the personal identifying features that can make a young, single, and mobile woman applicant from Zimbabwe difficult to make to record. The Pre-assessment also shows (based on categories selected) that previous travel and proof of funds continue to be important factors. As such, it is difficult to say if travel history is as ‘neutral’ as the Federal Courts have attempted to establish it is.

Why do they do it this way via excel? Well IRCC claims that officers can increase their processing volume (depending on visa office) anywhere from 5% to 35% using this system.

I would also not be surprised (I am speculating) if the excel-based system allowed also for real-time tracking of statistics. This way a visa office with a refusal target could likely keep track while at the same time processing applications.

 

#2 – Reasons are Templated and Generated After Refusal. They Don’t Have to Refer to Your Original Evidence (their position, not mine)

If one were to think of it logically, or perhaps engage in the exercise themselves, it would make sense to do some sort of a yay/nay list on a chart or table and ultimately decide, based on the facts gathered, whether or not to approve a client. Indeed, while not required, much of immigration (think Ribic factors or the assessment of humanitarian and compassionate grounds) often work on this weighing system.

Such is not necessarily the case with temporary resident refusals. With IRCC’s systems, a decision to refuse or approve is made first, and then a notes generator (read: template generator) is utilized to choose the applicable reasons. The Officer then copies and pastes this into Global Case Management System (GCMS).

While Officers continue to have access to the original documents submitted by applicants, much of the guidance suggests the anchoring point is the excel document – one populated by the aforementioned pre-assessed notes and verbose client information. Officers are very much deciding to approve or refuse simply on an individual’s basic profile. This suggests that whatever is chosen to be extracted from an application, rather than what is actually in the application is most important. Such guidance should serve as a reminder to keep support letters and evidence not only strong, but visible and searchable rather than tucked away on page 12 of a 15 page submission letter.

There are also ‘risk indicators’ and ‘local word flags.’ Risk indicators can capture where there is a trend, for example, of an Office submitting fraudulent information and local word flags, capture words such as ‘wedding.’ I am still researching what the other words are, but we know they depend on what visa office runs them. It would not be a surprise to see more risk indicators and local¬† I would not be surprised if IRCC is also running OCRs (optical character recognition) or utilizing machine-based decision-makers to flag key words. Yet, looking at the GCMS notes of several recent files, it appears risk indicators and local word flags don’t often appear. What this may suggest, is that the Officers rely more on the pre-assessment, verbose info, and their working notes to render a decision.

Which brings us to the issue of working notes below.

 

#3 Working Notes of Officers (i.e. Where the Factual Analysis Takes Place) are Not Ordinarily Retained

Templated reasons themselves do not (at this stage) need to contain reference to facts in the Application. While IRCC maintains that Officers do have the right to choose not to use them, the reality is any officer facing instructions to process fast and maintain consistency, likely won’t diverge too far from them.

When clients come and find me after a referral, I often hear from them that they believe the Officer ignored evidence or turned a blind eye to something they submitted. Turns out there is likely much more to it.

Officers do have space to maintain working notes in their system, but – and importantly, these notes are not transferred to GCMS for privacy and administrative convenience purposes. IRCC claims that if they were required to manually input Officer’s working notes it would create too much of an admin burden.

Strategically though, this is a brilliant play. If decisions were to include working notes and commentary it would open up the possibility of all sorts of litigation. Thinking back in history, it was the working notes of several Officers that led to such a departmental disaster such as Baker. 

The Supreme Court of Canada’s decision in Vavilov also supports short, pithy reasons that maintain consistency – essentially what IRCC is trying to do with this system.

The Majority writes at paragraph 77:

[77]¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†¬†It is well established that, as a matter of procedural fairness, reasons are not required for all administrative decisions. The duty of procedural fairness in administrative law is ‚Äúeminently variable‚ÄĚ, inherently flexible and context-specific:¬†Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682;¬†Baker v. Canada (Minister of Citizenship and Immigration),¬†[1999] 2 S.C.R. 817, at paras.¬†22-23;¬†Moreau-B√©rub√©, at paras. 74‚ÄĎ75;¬†Dunsmuir, at para. 79. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances:¬†Baker, at para. 21. In¬†Baker, this Court set out a non-exhaustive list of¬†factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself:¬†Baker, at paras. 23-27; see also¬†Congr√©gation des t√©moins de J√©hovah de St-J√©r√īme-Lafontaine v. Lafontaine (Village),¬†2004 SCC 48, [2004] 2 S.C.R. 650, at para. 5. Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal:¬†Baker, at para. 43; D. J. M. Brown and the Hon. J. M. Evans, with the assistance of D.¬†Fairlie,¬†Judicial Review of Administrative Action in Canada¬†(loose-leaf), vol. 3, at p. 12-54.

(emphasis added)

IRCC is in the process (the part I am not yet at the liberty to discuss as I am assisting in the litigation) of getting judicial endorsement for their choice of process. I can say that if they are successful, and given it is well-established that the impact to foreign nationals (such as students is on the low end), this could serve as a rubber stamp. Such a process would make future judicial reviews much more difficult if the Courts find that templated reasons do not need factual reference. Furthermore, refusal letters could simply that the Applicant’s evidence was insufficient and leave it to their counsel, Department of Justice, to build up a justification after the fact.

 

Caution: Expect GCMS Notes to Thin at the Detriment to Your Client’s Knowledge of the Case to Be Met

What does this all practically mean for your run of the mill temporary resident applicant. Well – expect GCMS notes to say less and less and for the bulk of the information to be retained on IRCC’s ‘internal’ system. It is also likely moving forward (and that we’ve already seen in some cases) nothing in the notes for when procedural fairness letters are sent. This will make it very difficult to respond, especially where procedural fairness letters are so broadly worded. This could make the process much less transparent and lead to many more misrepresentation finding (as just one example).

 

Bonus: A Little Gratitude

I want to thank again, my incredible colleague Zeynab Ziaie for her advocacy and supporting our efforts to learn more about the way IRCC operates. I have purposely not included anything in this piece that may be subject of our litigation and is not already publicly accessible. We may be writing more about this shortly.

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Now Offering Canadian Immigration Second Opinion Services (“#CDNIMMSOS”)

In this post, I announce that I am providing Canadian Immigration Second Opinion Services (#CDNIMMSOS). I would like you to tag this hashtag on Twitter, Facebook, or in an email to us, whenever someone in your network needs a second opinion on their immigration matter. I pledge to do provide this opinion affordably and with your (the client’s) best interests at stake, with the support of my competent legal team at Heron Law Offices.

 

First, A Bit About the Why

Over six years now in this industry, and as a Canadian immigration lawyer – and I have to admit things have changed.

When I entered practice, we were in the midst of an enforcement-minded Conservative Federal Government. I remember doing many detention reviews, Immigration Appeal Division matters, and judicial reviews. Post-Graduate Work Permit refusals were frequent and the lapse time between refusal and removals was much shorter.

Back then too, there appeared to be less chefs in the Kitchen – or at least everyone knew who the good chefs were and went to them. Nowadays, and a credit to our industry and incredible Continuing Professional Development (CPD) programs, very good young lawyers and extremely competent immigration consultants have received top notch training. The overall quality of Canadian immigration work has increased. We have also seen the entry of accounting firms, and other service providers that are able to do volume work.

Government too has carved out a much more Do-It Yourself (“DIY”) approach to immigration processing. Their new portals, centred on the user experience, will drastically change the role of immigration representatives from primary applicant shoe-filler to support (and possibly tech support worker).

I remember when Express Entry was in its infancy and applications were being rejected as incomplete, front, left, and centre. Now there are some incredible video tutorials and courses (my mentor/colleague, Mark Holthe’s just to name one).

There is also a major change coming with the new College of Immigration and Citizenship Consultants.  These changes will put more scrutiny on the flow through of recruitment fees. The Code of Conduct will hopefully ensure that representatives for employers are not utilizing the client as a vehicle for generating additional revenue Рa process that has been at the heart of labour market exploitation.

 

There is a Risk to All This – A Less Than Competent and Non-Partial First Opinion

We have seen the explosion of online and social media driven immigration advice giving. Whether it is from an individual who navigated it successfully themselves and seeking to help others, to a growing trend now of YouTube ‘Study Permit, Statement of Purpose’ advisors, one can see both the good and the bad.

As I have said on numerous occasions, even I on occasion check in online forums (especially those that have crowd-sourced application timelines) to get a sense of what is occurring on the ground. The Pandemic has brought together incredible online advocacy efforts – for separated spouses caught in backlogs, to migrant workers seeking permanent residence, to students pushing against tuition fees and exploitation.

Everyone has an opinion it seems on immigration. Everyone who has read a few government websites or gone through it themselves – thinks of themselves as being able to help. Every lawyer/consultant who has submitted an application or two – considers themselves specialized.

The reality on the ground is it is much more complicated. The representative’s (authorized or not’s) own positionality – goals, aims, interests, financial benefit – meets up with the client’s and is ultimately in the hands of a third party, non-rational actor who constantly changes up policy.

Too often what I hear from clients who seek us out the most, are that the representative who advised them previously told them everything would be okay and that approval rates were high, provided them little transparency into what they were doing, and deflected responsibility when the file was refused.

 

Employer-Driven Processes and Left-Out Employees

Another common feedback item we have been receiving is from foreign workers under the Temporary Foreign Worker Program (“TFWP”) and International Mobility Program (“IMP”) seeking their own immigration lawyers.

In traditional employer-driven immigration processes, especially for more established companies, it is the employer that retain the lawyer, drives the offer of employment/Labour Market Impact Assessment (“LMIA”) process, and then facilitates the work permit process.

Other than signing and authorizing the final forms, the employee often has little to do. This model worked when things were much simpler. Now, employee situations are complex and companies often have to push forward their business in ways that may leave the foreign worker on the sidelines. The pandemic – where mass temporary layoffs took place, was a prime example.

From accepting an initial offer (which may pose immigration hurdles) to getting terminated/let go/placed on leave or having to navigate a Provincial Nomination Program (“PNP”) and Bridging Open Work Permits (“BOWP”), employees must begin taking more autonomy over their immigration matters.

Having worked at Firms that acted primarily for employers, seen the way those retainers were crafted, and the type of conversations that were happening between HR and counsel, I decided for myself that I wanted to act on behalf of employees. This work primarily now is often being handled by legal clinics, but this work cannot hit the scope needed. It cannot be just the serious cases with abuse – it needs to be a widespread first step for an employee to ensure their immigration best interests are always being taken care of.

I am of the opinion that all employees on work permits, should seek independent legal advice outside of that being provided by their Employer’s counsel. The earlier this can be done – the better. Many times it may be something in the past as well – employment experience, misrepresentations, criminality, non-compliance that factors into the future. Do not wait until a refusal or employment issues arise, as you may find yourself abandoned.

Similarly it is my opinion that all employers, especially big employers, should seek to understand the foreign worker’s perspective outside of the advice given by their own counsel. That is – they should continually attend trainings and resource themselves to ensure they are compliant with immigration legislation and understand the employees perspective as well. The hard truths and realities are often what are shielded in the name of business efficiencies but are what ultimately what can severely affect a business, when relationships sour and parties threaten to report each other to relevant authorities – a common theme I have seen at my offices of late.

 

Canadian Immigration Second Opinion Services (#CDNIMMSOS)

We’re launching this project because we want to shift our services away from necessarily taking on entire initial files – such as initial study permit applications or work permit applications and instead be your second opinion person. The one who acts as a check and balance in your corner, devoid of any ulterior motives – other than to support you.

Our services won’t be popular. We never entered this work to be. We want to be the one emailing your Employer on your behalf advocating for you, the one that stops you from falling into an exploitative situation. You are likely not going to get referred by your current consultant or company’s lawyer to us. You need to seek us out, but we’ll be here waiting.

 

The Problem With Independent Legal Advice (“ILA”)

When it comes to independent legal advice, the reality is that the very referral of the file to a trusted colleague for ILA can be impartial. When I refer out files for ILA, I tell clients that they should choose their counsel independent of my recommendation.

If, for example, there was incompetence of counsel, an oversight, a misstep – it takes a certain level of true independence to pursue it on behalf of the client you are providing ILA for.

Again, going back to my earlier premise – the network of chefs in a local immigration network is quite small. Most of us respect each other’s work.

When seeking a truly independent legal opinion or a second opinion, always ask if the receiving party knows the initial party who did the application. Ethical second opinion providers will pass on a matter if they may believe their opinion could be compromised.

For example, one time a colleague and I were referred a file for a second opinion. The original counsel was one we both had on Facebook and knew was going through mental health challenges – based on their private postings. It would have been unethical and sharp practice for us to take on such a file, with this private knowledge.

On the other hand, be aware of lawyers and advisors who appear to promote a pure litigious/negligence approach without highlighting actual substantive advice for your file – especially if immigration remedy rather than punitive/financial damages are your primary need.

 

Aren’t I Paying Twice for Advice?

The short answer is: it depends. Most employers, if the process is done ethically, cover the costs of the LMIA or the Employer Compliance fee – and many will also foot the bill on the work permit application.

However, what I am proposing with providing second opinion is simply to seek a consultation at the start of your matter, to double check that your materials are being submitted correctly, and then also when any major challenges arise. The cost of a consultation early, to catch an issue, could save you thousands on the back-end if you require responding to a complex procedural fairness letter or going to Court.

 

#CDNIMMSOS РContact Information 

We look forward to helping. Email us at info@heronlaw.ca to set up a consultation with one of our (soon-to-be) three lawyers on your Canadian immigration matter.

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‘Young, Single, Mobile, and Without Dependents’ – Why the Courts Need to Step In

Among a few frustrating trends, Immigration, Refugees and Citizenship Canada (“IRCC”) continues to refuse temporary resident applications (namely visitor visas and study permits) by single applicants, who are younger, and do not have spouses/dependent children. More often than not these individuals come from countries where there may be a presumption of a primarily (permanent) immigration intention or that dual intention arguments run up against evidence of a country’s instability. More often than not those that are refused on this ground are also women. This refusal reason is very common, for example from the visa office in the Middle East and Africa.

In this piece I’ll look at what Applicants can argue in response, what the Department of Justice (or “DOJ”)’s¬† position is when responding on behalf of their clients, IRCC, and ultimately why this is a very worrisome ground of refusal moving forward.

 

A Flawed Finding That Often Lacks Legs

The argument that one can be refused simply for being ‘young, single, mobile, and without dependents‘ is not on solid ground based on numerous Federal Court decisions. In Iyiola v. Canada (Citizenship and Immigration), 2020 FC 324, Justice Fuhrer summarizes the case law on this point ‚Äď particularly how finding a lack of dependents a negative factor, without further analysis, would preclude many students from eligibility.

[20]  As noted above, the High Commission’s decision indicates concern that Mr. Iyiola may not leave Canada at the end of his authorized period of stay; Mr. Iyiola bore the onus of satisfying the visa officer in this regard: IRPA s 20(1)(b). Regarding Mr. Iyiola’s family ties in Canada and in Nigeria, he has five other family members in Nigeria, including his parents with whom he lives with, none of which was mentioned in the GCMS notes; given this, it would have been unreasonable without further analysis to presume an older brother in Canada would be a more significant pull factor: Obot v Canada (Citizenship and Immigration), 2012 FC 208 [Obot] at para 20. Accordingly, I find it unintelligible that there was no explanation whatsoever by the High Commission, nor by the visa officer in the GCMS notes, about the family ties in Nigeria and how these were assessed in the context of Mr. Iyiola’s family ties in Canada. Moreover, I agree with Justices Russell and Mosley that an applicant’s lack of a dependent spouse or children, without any further analysis [as in this case], should not be considered a negative factor on a study permit application; otherwise, this would preclude many students from being eligible: Onyeka, above at para 48; Obot, above at para 20.Finally, it is unintelligible in my view to construe a lack documented travel abroad in itself [and without something else, such as a negative travel history] as an indication that an individual will overstay their authorized time in Canada: Onyeka, above at para 48; Ogunfowora, above at para 42.

(emphasis added)

Iyiola

It is also worth revisiting both Onyeka v. Canada (Citizenship and Immigration), 2009 FC 336, and Obot v. Canada (Citizenship and Immigration), 2012 FC 208, both notably cases that also involved Nigerian study permit applicants refused on similar language.

In Onyeka, Justice Russell finds that the Officer in this matter does not tie together how a lack of dependents leads an individual to not leaving Canada at the end of their authorized stay. He writes:

[48]¬†¬† ¬†¬† ¬†¬† ¬†¬†I can see some connection between being single and having no dependents and the issue of whether, under Regulation 216(1)(b), the Applicant will leave¬†Canada¬†at the end of the authorized period. These factors, however, merely place the Applicant in the position of most students applying for study permits. The Applicant has no family connections in Canada; his family is in the¬†U.K.¬†or Nigeria, and he has a highly responsible job in¬†Nigeria. The Officer does give reasons ‚Äď being single and having no dependents ‚Äď but these reasons are hardly sufficient to amount to a reasonable exercise of discretion when the other factors are taken into account. There is simply nothing on the facts to suggest that the Applicant is not a¬†bona fide¬†student or that he would stay in¬†Canada¬†illegally at the end of the authorized period. See¬†Ogbonnaya¬†at paragraphs 16-17.

(emphasis added)

Onyeka at para 48.

In Obot v. Canada (Citizenship and Immigration), 2012 FC 208., Justice Mosley as finds not transparent, justifiable, or intelligible how family ties are assessed in the context a 25-year-old single applicant. He writes:

[20]¬†¬† ¬†¬† ¬†¬† ¬†¬†With regards to the applicant‚Äôs ties to¬†Nigeria, the officer‚Äôs reasons are not transparent, justified and intelligible. The applicant is 25 years old and a student, it is thus normal for him to have ‚Äúno spouse, children or property‚ÄĚ in¬†Nigeria¬†or anywhere else. Furthermore the officer did not consider that all of the applicant‚Äôs family lives in Nigeria and did not consider the strength of his ties to his family:¬†Onyeka v Canada (Minister of Citizenship and Immigration),¬†2009 FC 336¬†at paras¬†21-22;¬†Li v Canada (Minister of Citizenship and Immigration),¬†2008 FC 1284¬†at para¬†30; and¬†Zhang v Canada (Minister of Citizenship and Immigration),¬†2003 FC 1493¬†at paras¬†21-22.

(emphasis added)

Obot at para 20.

In the recent decision Singh v Canada (Citizenship and Immigration), 2021 FC 691, the Officer refused the Applicant’s work permit application on the basis that her family ties suggest that she will not leave Canada at the end of her authorized stay, despite the Applicant’s evidence that she has no direct family ties in Canada. While is not a study permit case per se, it is very instructive.  Justice Fuhrer (note: same decision maker as in Iyiola) states the following in Singh:

[5]¬†Regarding the first ground of refusal, I find that the absence of any articulated reasons for the Officer‚Äôs determination that Mr. Singh would not leave Canada at the end of his stay because of family ties in Canada renders the decision unreasonable for lack of justification:¬†Vavilov, above at para 86. In my view, it is clear on the face of the record, and the Respondent admitted in both written and oral submissions to the Court, that there is no evidence Mr. Singh has any family ties in Canada. To the contrary, Mr. Singh‚Äôs evidence is that his spouse, child and parents live in India. I add that it is not evident which country the Officer meant by ‚Äúyour country of residence,‚ÄĚ whether the UAE, India, or another country.

[6] Nor is there any discussion at all in the brief Global Case Management System [GCMS] notes, which form part of the Officer’s reasons for refusing Mr. Singh’s work permit application, about his family. To be clear, my concern with the GCMS notes is not their length. Rather, the outcome of Mr. Singh’s application on this basis is at odds with the factual context, and is not supported by any reasons, let alone intelligible and rational reasoning: paraphrasing Vavilov, above at para 86. (Emphasis added)

Singh at paras 5-6.

With these several cases, it seems strong that if family ties are not analyzed beyond just mentioning the presence of a Canadian (or Canadian-based family member) that this will not be accepted by the Court. Yet, we have seen a pushback with the position Department of Justice is taking on several judicial reviews – attempting to justify the finding with their own (largely after the fact) factual analysis.

 

How the Department of Justice (Lawyers for IRCC) Counter

The DOJ, again even if it is not in the actual findings of the Officer, will respond to judicial reviews by arguing two fold (1) that the evidence provided by the applicant was insufficient and therefore the concern was not credibility (requiring further information requests etc.) and that the onus that the applicant would leave Canada was not met; and (2) try to piece together the applicant’s biographical history to muddy the waters of what may appear to be a clear cut case with strong ties to the country of residence to try and accentuate push/pull factors.

A case they often cite is the 2013 decision of Babu v. Canada (Citizenship and Immigration), 2013 FC 690 (CanLII).

[19]¬†¬† ¬†¬† ¬†¬† ¬†¬†Last, the applicant says that for two reasons the officer unreasonably discounted his family ties to Pakistan in arriving at the conclusion that he had not ‚Äúdemonstrated sufficient level of establishment or ties to Pakistan that would compel him to depart Canada within the period authorized.‚Ä̬† First, as in¬†Zhang v Canada (Minister of Citizenship and Immigration),¬†2003 FC 1493, Mr. Babu presented evidence that he and his family intended that he return to Pakistan upon completion of his studies.¬† Second, as in¬†Hara v Canada (Minister of Citizenship and Immigration),¬†2009 FC 263, all of Mr. Babu‚Äôs immediate family reside in Pakistan and he is expected to assume primary responsibility for his father‚Äôs affairs as the only son.

[20]           It is not disputed that there were factors that weighed in favour of the view that he would return to Pakistan and thus ought to be granted the permit.  However, one cannot point to isolated facts or factors which favoured the applicant to argue that the officer’s assessment was unreasonable; rather, the officer’s determination under paragraph 216(1)(b) must be examined in light of the whole record.  In this case, there were factors weighing on both sides of the equation.  On the negative side, Mr. Babu had not shown he was pursuing higher education in his chosen field in Pakistan and did not provide particularly convincing reasons why not; Mr. Babu had been working for more than three years but had low savings and no property; Mr. Babu was not married and did not have children, and was thus probably relatively portable; and the situation in Pakistan was admittedly relatively bleak for Hindus like Mr. Babu.  On the positive side, Mr. Babu’s family expected him to return to Pakistan; Mr. Babu’s immediate family was in Pakistan; and Mr. Babu stated in a letter to his immigration representative and current counsel that he intended to return to Pakistan.

[21]¬†¬† ¬†¬† ¬†¬† ¬†¬†The task of […]

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Revealing More About Reconsideration: What Our Latest Obtained Unreleased IRCC Training Guides/Manuals Tell Us

One of the most underappreciated and underutilized remedies in Canadian immigration is that of the reconsideration request.

I do not blame advisors or applicants for this one. This is a general veil on what this remedy entails – especially as the existing policy guidance and materials are not presented as general instructions, rather specific to application types (Humanitarian and Compassionate Grounds and Family Class). Finding the right information on IRCC’s website is a bit of a treasure hunt.

 

A. What We Know To-Date

We know that a reconsideration request is a written request to an officer to ask them to reconsider a decision. These are often sent in through case-specific enquiry or to a visa-office supported method of communication.

The main instructions, which *in large part* represent present day instructions, are found below in my breakdown of the H&C and Family Class program delivery instructions (“PDIs”). I have quoted the instructions and will add some commentary as I discuss throughout.

H&C PDIs

These first set of instructions are from the Humanitarian and Compassionate Grounds PDIs.

Guidelines for reconsideration requests after refusal (at stage 1 or 2)

The legal doctrine of functus officio does not automatically bar reconsideration of final H&C decisions (MCI v. Kurukkal, 2010 FCA 230). The decision maker may exercise discretion to reconsider, or refuse to reconsider the applicant’s request for reopening of a previous decision. However, reconsideration should only be done in exceptional cases.

An applicant’s dissatisfaction or disagreement with the decision does not by itself qualify as an exceptional case.

 

Return reconsideration requests to the original decision maker when possible. For reconsideration requests previously determined by a local CIC, the request should be sent to BRO-V for assignment.

(emphasis added)

I want you to pay extra careful attention to the words underlined for emphasis added.

IRCC then goes to set out a two-step process for reviewing a consideration request. As a side note here, I rarely ever see counsel go through the two-part test or highlight the considerations below.

Reviewing a request for reconsideration is a two-step process:

  1. Decide whether to re-open the case and consider the new evidence, even if the case is under litigation at the Federal Court.

  2. If you decide to reconsider, review the new submissions and the original file and decide whether or not to change the original decision.

The factors for reconsideration are set out below:

Factors to consider when deciding whether to reconsider:

You must first determine whether a reconsideration of a previous H&C decision is warranted based on the information submitted. The onus is on the applicant to satisfy the officer that the reconsideration should be done. You should consider all relevant factors and circumstances to determine whether a case merits reconsideration. The following is a non-exhaustive list of factors that may be relevant to consider:

  • Whether the decision-maker failed to comply with the principles of natural justice or procedural fairness when the decision was made.
  • Whether the applicant has requested correction of a clerical or other error (e.g. a decision was made by an officer who did not have the delegated authority).
  • If new evidence is submitted by an applicant, is the evidence based on new facts (i.e. facts that arose after the original decision was made and communicated to the applicant) and is it material and reliable. Decide whether that evidence would be more appropriately considered in the context of a new application.
  • When additional evidence is presented that was available at the time of the original decision, consider why it was not submitted at the time of the original application. Determine whether that evidence is material and reliable.
  • The passage of time between the date of the original decision and the date of the reconsideration.
  • Whether there were any concerns regarding fraud or misrepresentation relating to a material fact, in the original decision or with the new submissions.¬†
  • If there is a negative decision from the Federal Court after judicial review, you may refuse to re-open if there are no extenuating factors to warrant reconsideration.

(emphasis added – note this one particular last bullet point moving forward)

IRCC also provides guidance to Officers in the public facing instructions about what to do after deciding whether to reconsider or not reconsider.

Once you have decided whether or not to reconsider:

If the decision is to reconsider do the following:

  • re-open the first H&C decision
  • request information from the applicant (e.g. medical, procedural fairness letter)
  • make a new decision and send approval/refusal letter Stage 1.

If the decision is not to reconsider notify the applicant. You may refer to the original refusal to explain the refusal because the applicant was already informed of the reasons that their application was refused.

Record the reasons why the reopening request was granted or refused based on the submissions reviewed. For example, a decision might reflect the following reasons:  passage of time, new information not previously submitted, or procedural fairness error. Whether a detailed analysis is necessary should be determined on a case-by-case basis depending on factors such as whether the decision was re-opened, the kind of submissions etc. 

Family Class PDIs

With respect to the Family Class, IRCC has the following instructions.

Much of which replicates what is listed in the H&C section above:

Reconsideration and enquiries after refusal

Applicants or their representatives often submit information after a refusal and request that an officer reconsider the decision. If an office receives a request to reconsider a decision, an officer must consider the request and decide whether or not to exercise their discretion to reconsider the previous decision. The legal doctrine of functus officio does not automatically bar reconsideration of final decisions (MCI v. Kurukkal, 2010 FCA 230).

The decision-maker may exercise discretion to reconsider, or refuse to reconsider the applicant’s request for reopening a previous decision. However, reconsideration should only be done where warranted, in exceptional cases. An applicant’s dissatisfaction or disagreement with the decision does not by itself qualify as an exceptional case.

The onus is on the applicant to satisfy the officer that reconsideration is warranted. The decision-maker should consider all relevant factors and circumstances to determine whether an application merits reconsideration. The decision whether or not to reconsider the application must be recorded in GCMS and communicated to the applicant. The applicant’s correspondence requesting reconsideration and any supporting documents should be kept on file.

(emphasis added)

Noting again, the underlined sections, one wonders why for Family Class, the information is different than that for H&C grounds. Based on these instructions it appears the Officer MUST consider the reconsideration request, but MAY choose to exercise discretion to re-open or not to re-open. Again, the wording is of EXCEPTIONAL CASE.

The factors are then listed below, which largely replicate the one for H&C.

A (non-exhaustive) list of factors that may be relevant to consider:

  • whether the decision-maker failed to comply with the principles of procedural fairness when the decision was made
  • whether the applicant has requested correction of a clerical or other error (e.g. a decision was made by an officer who did not have the delegated authority)
  • if new evidence is submitted by an applicant, is the evidence based on new facts (i.e. facts that arose after the original decision was made and communicated to the applicant) and is it material and reliable. Decide whether that evidence would be more appropriately considered in the context of a new application
  • when additional evidence is presented that was available at the time of the original decision, why it was not submitted at the time of the original application ‚Äď determine whether that evidence is material and reliable
  • the passage of time between the date of the original decision and the date of the reconsideration
  • whether there were any concerns regarding fraud or misrepresentation relating to a material fact, in the original decision or with the new submissions

It is preferable that the initial decision-maker review any request for reconsideration. However, where that is not possible, a request for reconsideration can be reviewed by a different decision maker as long as that person has authority to make decisions of the type under review.

The one noticeable omission is this factor from above:

  • If there is a negative decision from the Federal Court after judicial review, you may refuse to re-open if there are no extenuating factors to warrant reconsideration.

Finally the instructions provide the Officer to enter information into GCMS.

Officers making a decision on whether or not to reconsider should ensure that the following information is entered in GCMS Notes:

  • the reconsideration decision
  • the reasons for the reconsideration decision

Note: The decision whether or not to reconsider is subject to the possibility of judicial review. Taking the above measures will ensure that, in the event a refused applicant submits a leave to appeal to the Federal Court, there is an official record and supporting information on file to reflect that IRCC received, assessed and rendered a decision on a reconsideration request.

Reconsideration for Paper-Based Applications

IRCC also has some instructions posted in program delivery instructions titled: Emailing clients who have paper-based applications which cross-references the Family Class instructions, suggesting again that these are the main instructions.

 

Missing Emails Cases

There is also specific information regarding missing email cases, which I will not go into detail, you can find more information here on the same PDIs for Paper-Based applications discussed above.

These instructions replace the expired Operation Bulletin 195 and have remained consistent throughout.

 

B. What Do Current Instructions Not Tell Us?

However, what about regular temporary residence applications (student permits, work permits, visitor visas, and eTAs?

Do the same instructions apply?

Are there are also other instructions that are missing? For example for economic applications. Why is the information on reconsideration only for two programs.

I decided to do an ATIP request on reconsiderations to find out. Note – I still do not believe I received all the information I was seeking, specifically how different overseas visa offices create policies and practices around reconsideration. However, I did get some training materials and updated information that will highlight discrepancies. It also highlights the challenges of navigating updated policy from a bureaucratic perspective.

Most of IRCC’s policies (unless they are designated as internal – as this one was) are ultimately converted into the Program Delivery Instructions (PDIs) for […]

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My Value Proposition

My Canadian immigration/refugee legal practice is based on trust, honesty, hard-work, and communication. I don’t work for you. I work with you.

You know your story best, I help frame it and deal with the deeper workings of the system that you may not understand. I hope to educate you as we work together and empower you.

I aim for that moment in every matter, big or small, when a client tells me that I have become like family to them. This is why I do what I do.

I am a social justice advocate and a BIPOC. I stand with brothers and sisters in the LGBTQ2+ and Indigenous communities. I don’t discriminate based on the income-level of my clients – and open my doors to all. I understand the positions of relative privilege I come from and wish to never impose them on you. At the same time, I also come from vulnerability and can relate to your vulnerable experiences.

I am a fierce proponent of diversity and equality. I want to challenge the racist/prejudiced institutions that still underlie our Canadian democracy and still simmer in deep-ceded mistrusts between cultural communities. I want to shatter those barriers for the next generation – our kids.

I come from humble roots, the product of immigrant parents with an immigrant spouse. I know that my birth in this country does not entitle me to anything here. I am a settler on First Nations land. Reconciliation is not something we can stick on our chests but something we need to open our hearts to. It involves acknowledging wrongdoing for the past but an optimistic hope for the future.

I love my job! I get to help people for a living through some of their most difficult and life-altering times. I am grateful for my work and for my every client.

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