With Immigration, Refugee and Citizenship Canada’s (“IRCC”) 2016 Level’s Plan as mandated by the Government of Canada, one of the challenges I am beginning to see is IRCC’s struggle in balancing expediency with the need for leniency in the event of honest mistake.
With the economic immigration target having decreased by 25,600, an Express Entry system that will continue inviting individuals, and a government committed to reducing the backlog of existing inventory, a fear logically emerges. This fear is that in the interest of processing more applications, reducing the processing times, while fitting within a rigid target system, more applications begin to be refused.
In the past few months, I have had an increase of applicants come to see me for refusals for what I would deem mistakes that should have been given a second chance. These are issues that could have been resolved by giving the Applicant an opportunity to correct an honest omission or produce supporting documents.
Many of these refusals come from either applicants who did not receive a letter advising them of a minor deficiency or received a letter that did not make clear what the concerns were and therefore provided a deficient response. I have also seen procedural fairness letters that contain language diverting from usual program requirements, creating higher standards and leading to uncertainty felt by applicants.
I am reminded on this anonymous quote:
“Don’t punish the one in front of you, for the mistakes made by the one behind you.”
Without sacrificing expediency, I think that it needs to be a priority of the immigration system to give applicant’s a reasonable chance to correct minor or commonly-occurring/foreseeable mistakes, particularly where the IRCC’s own instructions are not the clearest.
Additional consideration should be provided to individuals have been in waiting for multiple years on a decision, where other family members are impacted, where there is a reasonable chance that administrative error or honest mistake occurred.
In the context of a visitor visa or a study permit, I understand where this may not be possible and where the Applicant can arguably reapply.
However, particularly in the context of programs such as the old Canadian Experience Class/Federal Skilled Worker or Provincial Nominee programs, where programs may no longer exist in their current form, greater procedural fairness should be provided.
Creating Greater Mechanisms for Reconsideration
On that note of reconsideration, I would suggest that greater flexibility be provided in creating a process for reconsideration where the applicant may have no other options and where the mistake may be one of simply giving the applicant “a second chance” at responding to a procedural fairness letter – perhaps triggering them to find counsel to better respond to IRCC’s original concern.
Of course, this must be balanced with the fact that applicants should be submitting a complete application and that there should be no expectation that providing a second chance is the norm. However, where the Applicant is self-represented, clearly of limited knowledge and financial resources, it is interest in the access of justice to increase the procedural fairness provided. I would not disagree with the fact this should be viewed on a case by case basis.
Particularly with Express Entry and other online-based applications, where accidents happen at a greater frequency than on paper, often times due to the layout of the online application process, some consideration should be made into creating a mechanism (including a grace-period) for corrections.
Conclusion
I want to conclude with several closing paragraphs from Justice Phelan’s decision in Lim v. Canada (Citizenship and Immigration), 2016 FC 217 (CanLII) speaking to IRCC’s reconsideration/re-opening process
C. Re-Opening
[21] It is also necessary to address this second issue. The Official, having learned that the Applicant had not received the April 13, 2015 letter, refused to re-open the citizenship application. The sole grounds for the decision is that the Official does not re-open except for administrative error by departmental officials including, presumably, errors of this Official.
[22] Given the Court’s finding that the letter was not sent as it should have been, this was the very type of administrative error that the Official cited.
[23] More importantly, the cited grounds to exercise discretion to re-open were arbitrary and unreasonable. The only basis upon which a case would be re-opened is if the department deemed themselves to be in error. That ground takes no account of other factors such as Acts of God, unforeseen circumstances and matters beyond anyone’s control. It is a self-serving and ludicrous basis from which to reject a re-opening request and is hence arbitrary.
[24] It is an unreasonable basis because it lacks reality, common sense and fairness. As put to counsel, the Respondent would not re-open even if it knew that the letter was destroyed in a fire in the department’s offices because officials had not set the fire. It is a breathtakingly unreasonable position.
[25] The refusal to re-open decision must be quashed.
A quote to end – “Thus, flexibility, as displayed by water, is a sign of life. Rigidity, its opposite, is an indicator of death.” – Anthony Lawlor
