Reconsideration for visa and immigration application refusals in Canada
Sambath, a Cambodian citizen, applied for a study permit in Canada. He believed his application was perfect and addressed all the immigration officer’s questions. However, an officer refused the application based on a missing Letter of Admission (LOA). Ironically, Sambath had enclosed a valid LOA from a Designated Learning Institution (DLI). He booked an appointment with an RCIC and asked him to request reconsideration for the study permit refusal. The RCIC agrees to assist Sambath.
Table of contents
What does constitute reconsideration?
If an immigration officer refuses an application, you may ask them to reconsider the decision. However, you may not place a request just because you disagree with the officer’s decision. You have to include enough information and documents to show the officer one or more of the following has occurred:
- The officer has made a clerical error (e.g., they did not notice a document).
- There are humanitarian and compassionate reasons to reconsider the decision.
- You have detected an obvious mistake in fact or law
- The complementary evidence you have found could convince the officer to change their mind
The potential outcomes of a reconsideration request
As mentioned earlier, you may have different reasons for filing a reconsideration letter. Regardless, you may see different results, such as:
- Reopening of the application and requesting supporting or updated forms and documents
- Approving the application
- Refusing the request and keeping the application closed
- Disregarding the request and leaving it unanswered
Of course, the last two bullet points have the same outcome. However, the latter is harsher as the officer completely ignores your request. It also opens the door for filing a judicial review.
What is “Functus officio”?
Before continuing this article, I have to explain the doctrine of functus officio (pronounced ˈfəŋk-təs-ə-ˈfi-shē-ō). The principle implies that if a decision-maker renders a decision, they may not take it back.
The legal basis for reconsideration requests
According to Canada (Citizenship and Immigration) v. Kurukkal, 2010 FCA 230 (CanLII), the doctrine of functus officio does not preclude the immigration officers from reconsidering their decisions. However, the Federal Court of Appeal fell short of providing a list of circumstances the officer must reconsider their decisions. Following this decision, IRCC has issued a set of Program Delivery Instructions to assist the immigration officers in reconsidering H&C applications. Here is a brief list of those factors:
- Officers failed the principles of procedural fairness and natural justice
- The applicant has pointed out a clerical or other error
- New evidence has emerged that is reliable and material
Some other factors could negatively affect the requests, namely:
- The evidence was available at the time of the original application
- There is a significant time lag between the refusal and the application for reconsideration
- The officer suspects misrepresentation in the initial application or the subsequent request
- The federal court has already refused a judicial review application
These guidelines are for H&C applications. However, they could assist us with other types of applications.
How to submit a reconsideration request
In most cases, you could submit the request via the IRCC webform. Nonetheless, if the officer has communicated with you through email, you could also contact them by email. However, ensure the email address is correct and will reach the decision-maker. When you are submitting the request, consider the following:
- Be courteous to the immigration officer.
- Be clear about your request.
- Explain why you believe you deserve reconsideration
- Present any documents that support your request
- Refer to the potential Humanitarian and Compassionate elements of your request (e.g. the hardship you are facing and the best interests of a child affected by the decision of the officer)
Let us help!
If you need assistance with a reconsideration request or resolving an issue, fill out the following form. Alternatively, please book an appointment with me. If you are a licensed practitioner, book a mentorship session with me. For all other assessment inquiries, please fill out our assessment form.
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Al Parsai, LLM, MA, DTM, RCIC
Regulated Canadian Immigration Consultant
Adjunct Professor – Queen’s University – Faculty of Law
Ashton College Instructor – Immigration Consulting
Author – 88 Tips on Immigration to Canada
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