When Visa Officers Contradict the Immigration Website

Meurrens LawImmigration Trends

Towards the end of 2016 the Canadian government made many changes to Canada’s immigration programs.  The parents and grandparents sponsorship program went from being first-come, first-serve to a lottery system, arranged employment through a Labour Market Impact Assessment went from guaranteeing someone an invitation to apply for Canadian permanent residency to only being a factor slightly more significant than the newly introduced factor of Canadian post-secondary education, and Canada lifted the visa requirement against Mexican nationals.

The rate of change will continue to be fast in 2017.  Already, the government has announced that it will lift the visa requirement against Brazil, Bulgaria, and Romania, that it would introduce a work permit program for highly skilled foreign workers, that having relatives in Canada will increase one’s chances of being issued an invitation to apply for permanent residency, and that Canada will ratify the Comprehensive Economic Trade Agreement between Canada and the European Union, which will make it easier for Europeans to work in Canada.

At the same time that the rate of the pace of changes is increasing, the Canadian government has also expanded the number of ways in which it publicizes these announcements.  Many have been introduced through legislative amendments.  Others are simply posted on the Immigration, Refugees and Citizenship Canada (“IRCC”) website, where changes and updates are frequently posted as Program Delivery Updates, Operational Bulletins, Notices, and the IRCC website’s ever growing Help Section.   Often times, there is no formal announcement of a change. Rather, a page on the IRCC website is simply updated.

Given the simultaneous increase in the number of changes and the increase in the ways in which these changes are disseminated to the public, it is perhaps not surprising that on occasion visa officers make decisions which contradict the IRCC website.

The Law Trumps the Website

Although one might think that one could always rely on the IRCC website when preparing visa applications, people submitting applications to IRCC need to understand two key aspects of Canadian immigration law prior to applying.

First, Canadian immigration legislation is not nearly as comprehensive as the IRCC website.  The IRCC website is massive, and it is growing.

Second, information which is found on the IRCC website that is not found in Canadian immigration legislation is considered under Canadian immigration law to be guidance which influences the decisions of visa officers. The IRCC website is not binding on decision makers.

The distinction between the IRCC website and immigration legislation can have significant consequences for applicants. For example, Canadian’s immigration regulations state that a person who is without status can apply to restore their temporary resident status if they met the initial requirements of their authorized stay in Canada.  It is silent on whether an individual whose post-graduate work permit application was refused can restore their status from student to foreign worker.  There is one webpage on the IRCC website which strongly suggests that this can be done.   However, on several occasions in 2016 visa officers determines that was not possible to do this. When their decisions were challenged, the Federal Court of Canada ruled that the visa officers had acted reasonably and upheld their decisions.  The Court explicitly noted that the website is not binding on officers.

In a recent episode of the Borderlines Podcast, which I co-host and can be found here, we interviewed Dani Willetz, a former Supervisor at Canada’s immigration department.  She confirmed that she always taught her visa officers to follow the law first and to only treat material that IRCC published on its website as guidance.

How to Prevent Decisions which Contradict the IRCC Website

Although the IRCC website is not binding on visa officers, I do not believe that most immigration officers would make a decision that contradicts the IRCC website if they were aware of the information on it.

This is not to suggest that Canadian visa officer’s do not know what the law is.  However, as noted earlier, the sheer volume of information on the IRCC website, and the decentralised manner in which this information is updated, makes it inevitable that there will wording on the IRCC website which an officer may not be aware of, especially if it was recently updated.

The way to avoid inconsistent decisions should thus be obvious.  At our office, we routinely link to and include copies of the IRCC website in our visa applications, especially when we are relying on something which seems like it may be obscure or unique.  It has been our experience that visa officers never make decisions which contradict the IRCC website when we do this.

In 2016 my hope was that more refused applicants would start applying for the internal reasons for refusal.  Based on the e-mails that I received from readers, my wish came true.  In 2017 my hope is that more individuals will start copying and pasting the webpages on the IRCC website that they are relying on in their visa applications, and that the number of refusals based on reasoning which is inconsistent with the IRCC website dramatically decreases.