I have previously written in this blog about how Immigration, Refugees and Citizenship Canada (“IRCC’) has adapted an exceptionally strict approach to returning applications for incompleteness. I have also written in Policy Options about how frustrating this approach can be, because one of its main purposes appears to be to allow politicians to boast about reduced processing times, while ignoring the fact that the experience of individuals who are actually applying is actually often longer than previously. I wrote:
The current rigid triage system distorts a fair comparison of processing times. Suppose an individual applies to sponsor a spouse to immigrate to Canada and forgets to include in one of the forms the city where a non-accompanying brother was born. Previously, processing might have been delayed by two to three months while IRCC contacted the family, informed them of the mistake and requested they provide the information. Now, IRCC would instead return the application one to two months after it is submitted, and the family would have to resubmit. If some supporting documents have expired, they may have to reobtain them, and the process can easily take several months. Under the previous system, this delay would have added two to three months to the processing time. Under the Liberals’ triage system, technically there is no delay because processing doesn’t start until the application is resubmitted. So while the government can boast of reduced processing times, applicants are frequently worse off, and the time that it takes IRCC to approve their immigration applications is lengthened.
I should note that while the above paragraph criticizes the Liberal Government of Canada approach to returning incomplete applications, the previous Conservative Government of Canada essentially adopted (and indeed created) the same approach.
Several recent Federal Court decisions show just how strict IRCC is currently being.
In this case Mehrdad Karami submitted an application for permanent residency under the Federal Skilled Worker Class. His consultant accurately inputted his passport information into the online forms, but inadvertently uploaded Mr. Karami’s expired rather than current passport. IRCC rejected the Express Entry application for being incomplete because the expired passport was uploaded. Madam Justice Elliot determined that this was reasonable, stating that:
The documentary proof submitted by the Applicant in support of the application data – his passport number, date of issue and date of expiry – was simply not supported by the submission of the expired passport which contains different information.
In this case the Applicant submitted an application for permanent residency under the Federal Skilled Worker Class. The application checklist states that applicants must provide an official letter issued by a financial institution that lists all accounts, be printed on the letterhead of the financial institution, and include the name and contact information of the financial institution. For proof of funds, the Applicant uploaded copies of bank statements, mutual funds, etc. but did not provide a letter printed on the letterhead of the financial institution.
IRCC rejected the application for being incomplete as the Applicant did not provide an “official letter” but rather downloaded material from the website without any official letter or bank contact coordinates. Justice Brown determined that this was reasonable, stating that:
I agree with the Applicant that the regulations do not specify the manner of proof of the required financial information to be filed. While the regulations do set out the requirement to provide proof of settlement funds, they do not specify what is, or is not accepted as proof; they are silent as to the means by which an applicant may satisfy the obligation to demonstrate sufficient establishment funds. All parties are in agreement to this point as is the Court.
As a matter of policy, IRCC as a department decided that it wished to have certain information (in this case proof of financial information to support the required settlement funds) presented with verification not only by the Applicant (who must verify all information he or she submits) but verified also by the financial institution itself through an “official letter” containing the coordinates of the signing officer. The coordinates would obviously be useful to facilitate any due diligence directly with the financial institution the Visa Officer may decide to undertake.
Here, the Court ruled that it was reasonable to reject a sponsorship application due to a typo and the failure of the applicant to double check their application. The Court noted:
The Applicant obviously feels aggrieved and disappointed by the consequence of his mistake, that he characterized as a minor typographical issue. He appears to hold the Minister entirely responsible for what has happened and says that he had no opportunity to correct his error. This is not the case.
The instructions to applicants on the Interest to Sponsor Web Form are crystal clear. All applicants are emphatically told to:
Make sure this information is correct. It must be the same as what you’ll put on your application, if you’re invited to apply. Double-check all fields before submitting.
Enter the name and date of birth as it is on your passport, travel or identity document.
There is no explanation why the Applicant did not follow these clear instructions. He clearly initiated the problem by not checking the date of birth he entered. Had he observed these simple instructions there would have been no need for this application for judicial review. The Applicant’s position appears to be that if he does not follow the clear instructions to double check the information he is submitting, then the Minister is required to examine the reason for any discrepancy and assist him in order to move his sponsorship application forward. Given the volume of applicants, this may not be possible. Moreover, this is the second time the Applicant has failed to follow instructions. The instructions made it clear that he is the person responsible for the accuracy of any information he submits and that discrepancies may have adverse consequences. The Applicant is attempting to avoid that responsibility in this application.
This was a case in which the Federal Court ruled that IRCC’s decision to reject an application was unreasonable.
The IRCC Express Entry checklist told applicants that:
You must provide proof that you completed your post-secondary education. Examples of proof of education include a diploma and/or degree.
Mr. Thompson uploaded a document from the University of Alberta which certified that he has completed post-secondary education there.
IRCC rejected that the application on the basis that he did not upload a diploma or degree.
The Federal Court disagreed, stating that most reasonable people would be led to believe that certified information obtained from the office of the registrar of a reputable Canadian university would be considered sufficient proof of a CEC based on the wording of the “Instructions for Proof of Education” webpage, and even noting that the definition of “example” raises the spectre of other types of documents existing that are not restricted to the specific documents identified in the instructions.
In a short decision delivered from the bench Justice Grammond ruled that in Express Entry applicants do not need to submit supporting documents for factors that they do not require points for.
Advice to Applicants
The lesson of these cases is clear. It is imperative that applicants check and double check the checklist of any program that they are applying to prior to submitting their application. For example, as the following exchange between an immigration representative and the IMM Reportal that was obtained through an Access to Information Act request states, IRCC will return a Family Class application for being incomplete if the applicant includes a marriage license or record of solemenization instead of a marriage certificate.
I have successfully judicially reviewed Express Entry applications that were unreasonably returned for incompleteness. However, in these instances applicants had complied with the checklists.
It is also important that applicants check and double check what the checklist says prior to submitting an application, and not just when they start the process. Because Express Entry is an online application with an online checklist, what is required can change without warning, including after applicants have already read them and begun assembling documents.
Kaur v. Canada (Citizenship and Immigration), 2022 FC 1690
The Federal Court held that where someone provides a document after the application is made but before a decision is rendered that it is unreasonable for a visa officer to not consider it part of the application.
I agree with the Respondent that there was no obligation on the Officer to request further documents from the Applicant. However, in the context of this application, where it is not disputed that an innocent mistake was made uploading the documents and that the Applicant took steps to correct the error within the timeline and before a formal decision was made, it is my view that the education documents should have been considered and addressed in the Decision. Either they should have been treated as part of the application, or an explanation given in the Decision advising the Applicant why they could not be treated as part of the application, and that the Applicant could resubmit the full package of documents again before the expiration of the timeline under the Policy. In not doing so, it is my view that the Decision lacked sufficient transparency and justification.