An applicant checks their mailbox and finds a letter from Immigration, Refugees and Citizenship Canada. Excited, they open it, only to be shocked by a rejection of their application.
They quickly think, “I should have mentioned this new special circumstance or included this important detail!” or “There seems to be a clear mistake, but I’m unsure if a judicial review is an option!”
Now, they’re considering whether they can request a reconsideration of the refusal decision. Can they contact the officer to ask for a review of their immigration application?
The Doctrine of Functus Officio
The Latin term functus officio, meaning “having performed his office,” is a legal principle used in the judicial context. It signifies that a court loses its legal authority once it has completed its duties and functions, meaning a judge generally cannot reopen proceedings that have been finalized.
But does the functus officio rule apply to immigration officers as well? Specifically, can immigration officers reopen or reconsider applications they have previously rejected if an applicant requests a review?
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 for relief under section 25 of the Immigration and Refugee Protection Act, based on humanitarian and compassionate grounds, was initially rejected. He subsequently requested the immigration officer to reconsider the decision. However, the officer denied this request, citing the principle of functus officio, which means that once a decision is made, the decision-maker has no further authority on the matter.
The Federal Court of Appeal, however, determined that the functus officio principle does not strictly apply to non-adjudicative administrative proceedings. In certain situations, such as when dealing with section 25 submissions in immigration matters, there is discretion for administrative decision-makers to reconsider their decisions.
Further expanding on this, the Marr case illustrated that the possibility of reconsideration applications can be extended. Justice Zinn found that an immigration officer had erred by refusing to exercise discretion to review a reconsideration request in a Federal Skilled Worker case. Justice Zinn highlighted that:
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.
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:
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- 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:
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- 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:
Judicial Review of Reconsideration Requests
Seeking judicial review of a reconsideration request can be complex. First, it is crucial to clearly identify which decision is being reviewed. However, in Naderika v. Canada (Citizenship and Immigration), 2015 FC 788, the Federal Court revisited the issue of reconsideration. In a key judicial review case, Justice Gascon highlighted that even though the applicant’s counsel had only filed a judicial review application challenging the initial decision, Justice Gascon would still review both the initial decision and the subsequent refusal by IRCC. He emphasized that it would be contrary to the interests of justice to review only the initial decision without considering the subsequent refusal as well.
As well, as the Federal Court of Canada in Elkateb v. Canada (Citizenship and Immigration), 2012 FC 413 clarified that if a reconsideration request challenges an initial decision based on alleged mistakes, but the initial refusal was deemed reasonable during judicial review, the reconsideration request is unlikely to succeed in a subsequent review.
As well, in Xu v. Canada (Citizenship and Immigration), 2018 FC 9, the Federal Court noted that a visa officer’s caseload might be a relevant factor when deciding whether to reconsider an application.
In Kong v. Canada (Citizenship and Immigration), 2024 FC 1270, the Federal Court held that it is not enough for an officer asked to reconsider a prior decision on the basis that relevant information was not considered to simply rely on the fact that the initial application was considered on “its substantive merits.
In Lee v. Canada (Citizenship and Immigration), 2024 FC 913, the Court held that it a reconsideration of an extension request should be assessed at the time that the refusal was made, not the reconsideration request. There, a visa officer reviewed a reconsideration request in part because the applicant had not provided missing documents in the reconsideration request. The Court held that this was unreasonable because the Applicant did not know if the application had been reopened.
Two-Step Process
In recent years the courts have developed a two-step process for reviewing reconsideraiton requests. In Wophill v. Canada (Citizenship and Immigration), 2023 FC 1618, stress that a judicial review of a reconsideration refusal involves a two step process. The Court there held:
the process for reconsideration of an administrative decision involves two steps: (a) first, the decision-maker determines whether to exercise discretion to proceed to reconsider the previous decision; and (b) if the decision-maker decides under the first step to reconsider, then it performs that reconsideration. Under the first step, there is no general obligation to grant reconsideration where new evidence is submitted. Rather, an applicant must show that reconsideration is warranted in the interests of justice or given unusual circumstances. The consideration of the new evidence arises only at the second step, i.e. the actual reconsideration, if the decision to reconsider is made under the first step
The onus there is on the applicant to show that reconsideration is warranted in the interests of justice or because of the unusual circumstances of the case. If the officer decides to reopen the case they must then, at the second stage, engage in a reconsideration of the decision on its merits.
Insufficient Procedural Fairness Letters
Several Federal Court decisions have addressed the issue of whether a breach of procedural fairness due to an insufficient procedural fairness letter can be remedied if, upon receiving a refusal reason and GCMS notes, an applicant submits a recsonideration request. In Sampang v. Canada (Citizenship and Immigration), 2024 FC 1959, Justice Southcott stated that it can.
Internal IRCC Instructions
Reconsideration