Refusals of immigration applications are common, and it has also become common to apply for reconsiderations, but exactly is a reconsideration of a decision and what is the legal test?
The Federal Court of Canada has recently ruled on a two stage process required by an immigration officer when assessing a reconsideration of a negative decision.
In Ibhade Nyerovwo Agbhonkese v The Minister of Citizenship and Immigration , 2021 FC 1065, the Applicant claimed 15 points for having a Canadian relative in her original Federal Skilled Worker application. After she received a rejection for providing insufficient evidence to establish the relationship, she sought a reconsideration, this time including more robust evidence. She sought judicial review of the original decision after her request for reconsideration was denied.
Respondent argued that the application should be dismissed because the additional evidence was provided only with the request for reconsideration, which constituted a separate matter and thus required a separate application for review. The Court found that no useful purpose would be served by requiring the Applicant to challenge the reconsideration refusal separately. Further, the Court found that the assessment of a reconsideration request is a two stage process: (1) whether to reconsider the previous decision, and (2) the actual reconsideration of the initial decision. As such, the officer is not precluded from assessing in the second stage whether any new evidence necessitates reconsideration.
In the context of an application for a permanent resident visa, duty of fairness does not require a visa officer to inform the applicant of concerns arising from the requirements of the legislation – procedural fairness does not apply. However, the approach the officer takes in evaluating evidence should be substantive and not formulaic. As common sense fairness dictates, the officer should grant the reconsideration request where it is made within days of the decision and new evidence that confirms a material fact in issue is provided.
As the guidelines refer to a list of documents and “any other documents that prove the described relationship”, it is unreasonable for an officer to not consider relevant evidence submitted in place of a listed document. Where the officer finds such a document to lack substantial weight, he or she is required to provide an analysis of the shortcomings.
The application for judicial review was granted and this has set a new precedent when it comes to reconsideration of refusals of permanent residence applications.
The experienced immigration lawyers at Invicta Law Corporation can help your application succeed. Contact us today to schedule a consultation or to obtain a quote.
