The Return of Incomplete Applications

One of the most frustrating experiences for people applying for visas is to have an application returned due to incompleteness.  Because of processing delays, it often takes Immigration, Refugees and Citizenship Canada (“IRCC“) months to return an incomplete application, and applicants have to then start over.  While the practice of returning incomplete applications was originally limited to IRCC, on June 20, 2014, the Ministry of Economic and Skills Development Canada (“ESDC“) released a Temporary Foreign Worker Program Bulletin titled “How to Handle Incomplete Applications.”

Section 12 of Canada’s Immigration and Refugee Protection Regulations (the “Regulations“) states that “if the requirements of sections 10 and 11 of the Regulations are not met, then an officer shall return a visa application and all documents submitted in support of it.”

Section 10 of the Regulations provides that a visa application contain certain prescribed information, including:

Form and content of application

10. (1) Subject to paragraphs 28(b) to (d) and 139(1)(b), an application under these Regulations shall

(a) be made in writing using the form provided by the Department, if any;

(b) be signed by the applicant;

(c) include all information and documents required by these Regulations, as well as any other evidence required by the Act;

(d) be accompanied by evidence of payment of the applicable fee, if any, set out in these Regulations; and

(e) if there is an accompanying spouse or common-law partner, identify who is the principal applicant and who is the accompanying spouse or common-law partner.

Required information

(2) The application shall, unless otherwise provided by these Regulations,

(a) contain the name, birth date, address, nationality and immigration status of the applicant and of all family members of the applicant, whether accompanying or not, and a statement whether the applicant or any of the family members is the spouse, common-law partner or conjugal partner of another person;

(b) indicate whether they are applying for a visa, permit or authorization;

(c) indicate the class prescribed by these Regulations for which the application is made;

(c.1) if the applicant is represented in connection with the application, include the name, postal address and telephone number, and fax number and electronic mail address, if any, of any person or entity — or a person acting on its behalf — representing the applicant;

(c.2) if the applicant is represented, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the name of the body of which the person is a member and their membership identification number;

(c.3) if the applicant has been advised, for consideration in connection with the application, by a person referred to in any of paragraphs 91(2)(a) to (c) of the Act, include the information referred to in paragraphs (c.1) and (c.2) with respect to that person;

(c.4) if the applicant has been advised, for consideration in connection with the application, by an entity — or a person acting on its behalf — referred to in subsection 91(4) of the Act, include the information referred to in paragraph (c.1) with respect to that entity or person; and

(d) include a declaration that the information provided is complete and accurate.

If the requirements of section 10 of the Regulations are not met, then an officer has no choice but to return the application for being incomplete.

Jurisprudence

Vavachan v. Canada (Citizenship and Immigration) is a useful demonstration of the importance of ensuring that applications are complete and compliant when submitted to IRCC.

However, the Federal Court has also shown some resistance to the idea that the Government of Canada can simply bounce incomplete applications for minor mistakes.

In Campana Campana v. Canada (Citizenship and Immigration), 2014 FC 49, IRCC’s Case Processing Centre Vegreville returned an application because it was incomplete and the applicant had paid incorrect processing fees. IRCC relying on s. 10 of the Regulations, argued that this made the application “not in existence.”  Justice Roy, however, stated that he could not find anything in the Regulations that allowed for the bouncing of applications.  He wrote (citations removed for ease of reading)

The Court in [Xiao v. The Minister of Citizenship and Immigration Canada] concluded that it took legislation to reject the application. I believe paragraphs 11 and 12 describe adequately the state of the law:

Secondly, although the Minister may issue guidelines and other non-binding instruments as a matter of administrative practice, even if such a policy existed in 1997, it acted as much more than a mere guideline in this instance: it was clearly mandatory in nature and the application had a legal effect. The Minister’s authority to make such requirements is derived exclusively from the relevant legislation: Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans). I cannot find any authority in the Immigration Act, the Immigration Act Regulations, 1978, or the Immigration Act Fees Regulations for such a requirement. It is no answer for the Minister to state that nothing in the Act or Regulations prohibit him from making it. His authority must be found in explicit and positive language in a relevant statute or regulation. Here, the Immigration Act Fees Regulations are not even ambiguous on the issue; they are entirely silent on whether applications may be returned for overpayments.

For the foregoing reasons, I have concluded that the Visa Officer should have applied the C.C.D.O. criteria instead of the N.O.C. criteria since the application was received prior to May 1, 1997, namely April 30, 1997, as noted supra.

Relying on operational manuals or practices that have developed over time cannot be a substitute for the appropriate authority of law. Unless the respondent can point to legislation to support its practice, and it has relied exclusively on section 10 of the Regulations, it will have failed. As in Xiao, silence cannot be used to argue that nothing prohibits returning an application for it to be resubmitted.

On the issue of what the Regulations provide for, the Court stated that:

If there were an ambiguity in the language used, I would be less reluctant to rely more firmly on the Regulatory Impact Assessment Statement. In this case, I cannot find anything in section 10 to confirm that a lack of compliance results in an application not being in existence. Rather, we have a section that provides in clear terms what an application under the Regulations must contain. That an incomplete application may not be processed is one thing. Suggesting that it does not even exist is quite another.

Justice Roy went on to order that the matter was being returned for a re-determination by a different officer on the basis that an application was in fact made.

In 2015, however, the Federal Court issued two decisions which contradicted Campana.  These are Ma v. Canada (Citizenship and Immigration), 2015 FC 159 (“Ma“) and Stanabady v. Canada (Citizenship and Immigration), 2015 FC 1380 (“Stanabady“), .

In Ma, Justice Rennie found that an incomplete application was not an application at all, stating that:

An application under IRPA must be a complete application. The receipt of an application which is missing key components is not an application within the meaning of IRPA and the Regulations. This interpretation ensures that officers spend their time reviewing completed files, allowing for a more effective use of resources. Importantly, applicants are not preserving their place or priority in a queue based on the filing of partial applications, to the determinant of those applicants who file later, but file complete files.

In this case, the officer’s determination that the inland file was not complete until December 31, 2013 was reasonable.

Section 10 of the Regulations sets out the minimum requirements for applications. Specifically, subsection 10(1)(c) states that an application under the Regulations shall “include all information and documents required by these Regulations, as well as any other evidence required by the Act.” As the applicant’s inland application that was initially submitted on November 1, 2013, was incomplete, his application was therefore not locked-in until December 31, 3013, when all of the necessary information pursuant to subsection 10(1)(c) was received.

From an applicant’s perspective, this approach is problematic, especially in the context of implied status.  Section 186(u) of the Regulations provides that an individual may continue to work in Canada beyond the expiry of their work permit if they applied to extend their work permit prior to its expiry, until IRCC makes a decision on their extension application.  If an incomplete application is not an application, then presumably they never had implied status, meaning that their work was unauthorized.

In Stanabady, Justice Harrington also found that an incomplete application was not an application because since it was incomplete it would be impossible for an officer to either approve or refuse it. However, he noted that the reasoning in Campana was strong, and accordingly certified the following question;

When a temporary resident has applied for an extension of the period authorized for his or her stay, but the Application is returned to the Applicant, due to the incompleteness, in accordance with section 12 of the Immigration and Refugee Protection Regulations, does the Applicant benefit from implied status until he or she actually submits a complete Application and that Application is either refused or allowed?

Justice Harrington in Stanabady acknowledged that it was unlikely that the applicants in that case would actually take the matter to the Federal Court of Appeal.

Gennai v. Canada

In 2017, the Federal Court of Appeal in Gennai v. Canada (Citizenship and Immigration) provided some clarity on the manner. There, the Federal Court of Appeal answered the following question:

If an application for permanent residence is incomplete as it fails to meet the requirements prescribed by s 10 of the Immigration and Refugee Protection Regulations (“IRPA Regulations”) and the application and all supporting documents are returned to the applicant pursuant to s 12 of the IRPA Regulations, does the application still “exist” such that it preserves or “locks in” the applicant’s position in time so that a subsequently submitted complete application must be assessed according to the regulatory scheme that was in effect when the first, incomplete application was submitted?

The Federal Court of Appeal answered that an incomplete application which was returned did not lock in, stating that:

I agree with the Judge that an incomplete application is not an application within the meaning of IRPA and the Regulations. In my view, an incomplete application can no longer exist because the text of section 12 provides that the entirety of an application that has failed to meet the requirements under section 10 is returned to the applicant. When the appellant submitted his CEC application in February 2015, the respondent assessed the appellant’s application in light of the scheme in place at that time and not in reference to his previous incomplete and returned application. There was no authority to do otherwise. Therefore, as the appellant did not comply with the requirements of the Express Entry scheme, the respondent reasonably refused to consider his application.

The use of the term “can no longer exist” is interesting because it is different from stating that an incomplete application is not an application, as the Federal Court did in Ma.  The choice of wording strongly suggests that an incomplete application was in fact an application until it was determined to be incomplete. This would provide positive certainty to the issue which has not yet been raised by the courts, which is whether someone who submitted an incomplete application ever benefited from implied status.


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