Asking the Embassy to Re-Consider an Application

Meurrens LawJudicial Reviews, Work Permits

An applicant checks their mail box.  There is a letter from Immigration, Refugees and Citizenship Canada.  Excited, they open the letter.  To their utter shock, the letter says that their application was rejected.

They immediately think, “I should have told them about this special circumstance that just arose and this factor that I didn’t mention!” or “There’s a blatant mistake and a judicial review application isn’t an option!”

They want to write the officer to ask them to reconsider the decision to refuse their application, but they doen’t know… can she even do that?

The Doctrine of Functus Officio

Functus Officio, latin for “having performed his office”, is a legal term used in the judicial context to describe the principle that a court retains no legal authority once its duties and functions have been completed.  It generally means that a judge cannot re-open proceedings that have been completed.

However, does the functus officio rule mean that immigration officers cannot re-open or reconsider applications that they have rejected if requested to do so by applicants?

The Kurukkal Decision

In Canada (Minister of Citizenship and Immigration) v. Kurukkal, 2010 FCA 230, recently affirmed in Young Marr v. Canada, 2011 FC 367 (“Marr“), the Federal Court of Appeal answered this question in the negative.

Mr. Kurukkal’s application under section 25 of the Immigration and Refugee Protection Act for relief on humanitarian and compassionate grounds had been rejected. He then wrote to the immigration officer asking him to reconsider the decision.  The Officer refused to reconsider the application on the basis that the principle of functus officio “means that once a decision is taken, the decision-maker has no more authority on the matter.”

The Federal Court of Appeal, however, found that functus officio does not strictly apply in non-adjudicative administrative proceedings. In appropriate circumstances, such as where there are s. 25 submissions in the immigration context, discretion does exist to enable an administrative decision-maker to reconsider his or her decision.

Marr expanded the possibility of submitting reconsideration applications even further.  There, Justice Zinn ruled that an immigration officer erred in refusing to exercise her discretion to hear a reconsideration application in a Federal Skilled Worker case.  Justice Zinn noted that:

[57]           A final observation.  Basic fairness and common sense suggest that if a visa officer, within days of rendering a negative decision on an application that has been outstanding for many years, receives a document confirming information already before the officer that materially affects the result of the application, then he or she should exercise his or her discretion to reconsider the decision.  Nothing is served by requiring an applicant to start the process over and again wait years for a result when the application and the evidence is fresh in the officer’s mind and where the applicant is not attempting to adduce new facts that had not been previously disclosed.

In Ali v. Canada (Citizenship and Immigration Canada), 2013 FC 879, Justice Manson of the Federal Court has issued a decision similar to Marr.

In Naderika v. Canada (Citizenship and Immigration), 2015 FC 788, the Federal Court again addressed the issue of reconsideration. Importantly from a judicial review perspective, Justice Gascon noted that despite applicant’s counsel filing a judicial review application of only the initial decision, he would nonetheless review both CIC’s refusal of the initial decision and the subsequent decision as it would be contrary to the interests of justice to do so.

IRCC Policy on Reconsideration Requests

Following the Kurukkal decision, Immigration, Refugees and Citizenship Canada’s policy on reconsideration requests is as follows:

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, a decision to reopen and reassess an application should only be undertaken where warranted, onTR Reconsideration
an exceptional basis. 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 decisionmaker 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 retained on file.

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 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 – 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 decisionmaker as long as that person has authority to make decisions of the type under review.

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

    • the name of the officer rendering a decision on the reconsideration request;
    • the reconsideration decision;
    • the date of the reconsideration decision;
    • the reasons for the reconsideration decision
    • the date the reconsideration decision was communicated to the applicant

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 CIC received, assessed and rendered a decision on a reconsideration request.

Officers Can Also Re-Visit Decisions

Applicants should note that the notion that the doctrine of functus officio doesn’t strictly apply in the immigration context works both ways.  In Arango v. Canada (Citizenship and Immigration Canada), 2015 FCA (“Arango“), the Federal Court of Appeal answered the following certified question:

Once a PRRA officer has reached a final decision, and that decision has been communicated to the applicant, can the officer revisit that decision or does the doctrine of functus officio apply?

The Federal Court of Appeal answered:

A PRRA officer may revisit or reconsider a final decision in appropriate circumstances because the doctrine of functus officio does not strictly apply in non-adjudicative administrative proceedings.

The Federal Court of Appeal’s holding in Arango applies even where an applicant has commenced judicial review. In Vakurov v. Canada (Citizenship and Immigration)the Federal Court applied Arango and stated (citations removed):

Moreover, as Justice Hughes held in Chudal v Canada (Minister of Citizenship and Immigration), a PRRA officer has an “obligation to receive all evidence which may affect the decision until the time the decision is made”. The decision is made when it is delivered to the applicant (Ayikeze v Canada (Minister of Citizenship and Immigration); Avouampo v Canada (Minister of Citizenship and Immigration).

The Officer considered Mr. Vakurov’s late submissions at the first possible opportunity. According to the Officer’s affidavit, she was not aware of the grounds upon which Mr. Vakurov had sought judicial review of her initial decision. There is nothing to suggest the Officer’s decision was made in bad faith, or that the addendum was an ex post facto attempt “to remedy the evident breach of procedural fairness”, as argued by Mr. Vakurov. Moreover, Mr. Vakurov has not demonstrated that he suffered any prejudice as a result of the Officer’s decision to consider his additional submissions and documents, as he had requested.

Pursuant to Arango, an officer’s decision to issue supplementary reasons to address additional submissions or documents does not, in itself, constitute a breach of procedural fairness, even if an application for leave and for judicial review of the initial decision has been commenced. The Court must consider whether this was a valid exercise of the officer’s discretion to reconsider an initial decision, as opposed to an illegitimate attempt to justify a poorly-crafted decision. In this case, it was the former.

The IRCC Guidelines on reconsideration of temporary residence refusals can be found here:

TR Reconsideration

Judicial Review

Seeking judicial review of a reconsideration request can be complicated. First, it must be clear which application is being judicially reviewed.

As well, as the Federal Court of Canada noted in Elkateb v. Canada (Citizenship and Immigration), 2012 FC 413 if the reconsideration request is based on an alleged mistake in the initial refusal, but that refusal was found to be reasonable at judicial review, then a judicial review of the reconsideration request is unlikely to succeed.

As well, in Xu v. Canada (Citizenship and Immigration), 2018 FC 9, the Federal Court stated that a visa officer’s caseload can be a relevant factor in determining whether to reconsider an application.