What To Do If Your Immigration Application Has Been Refused Because of Document Error
By Patrick Rocca | May 14, 2014
Toronto immigration lawyer Karen Kwan Anderson: Imagine you are on the final journey of your immigration process to Canada: you submitted proof of your identity, you did the medical, you provided police certificates, you checked your mail and email daily for any updates from Citizenship and Immigration Canada (CIC) and you have waited years for a final decision from CIC…and then you get a letter from CIC refusing your application because you did not submit your passport for visa issuance.
After the initial shock of reading the refusal letter, you would ask yourself WHY and HOW could this have happened? You did not receive the request letter at all, so how could you have been able to answer CIC’s request for your passport? This scenario is true and has happened to many applicants. This is an issue of procedural fairness, or lack thereof.
Probable Causes of a Refused Immigration Application
Our immigration legal team has a lot of experience with these types of cases. In our experience, the answer to the WHY and HOW is due to three factors:
- The sheer volume of applications that are handled by numerous CIC officers inside and outside of Canada means a high probability of documents being lost, mishandled or misfiled;
- The use of email correspondence between CIC offices and applicants and/or their representatives is not a perfect system of communications. As we all know, technical glitches happen. Emails get caught in spam filters. Emails bounce back. Emails do not get answered. And CIC officers can refuse an application if documents are not received by a specified deadline; and
- Similarly, the use of snail mail correspondence is not perfect either. Mail can be lost, undelivered, misdelivered or can simply vanish. A simple clerical error in the number of an apartment unit, street or postal code can change one’s fate forever.
These 3 factors combine to produce conditions that are ripe for the absence of common-sense in an environment in which people’s lives are directly and adversely impacted by the slightest of errors. Fortunately, in some cases, a CIC officer would send another letter, email or a phone call to an applicant to follow-up with the request for documents. It is the unfortunate cases which result in media attention and litigation.
What recourse would you have if you were rejected by CIC because you failed to provide documents, yet you did not receive CIC’s letter requesting the documents?
A quick answer is to write to the CIC officer to reconsider the decision. Explain that you did not receive the request letter and you are ready to submit the requested documents. It is up to the officer to reconsider. He or she may respond to you or not. Each officer is an independent decision-maker with discretion on how to handle an application. An officer is not obliged to respond after a decision is made. That’s why we have the Federal Court of Canada. The Court’s role is to adjudicate challenges of tribunal decisions. A CIC officer is considered a tribunal.
However, you risk running out of time if you asked an officer to reconsider.
How We Help Clients Who Have Been Refused
Here’s what we do for our clients:
1. If you are in Canada and you received such refusal letter, you have 15 calendar days to file a notice to the Federal Court of an application for leave and for judicial review to challenge the refusal. By turning to the Federal Court, you are asking a Judge to review the facts that lead to the refusal by CIC.
There are 2 stages to a Court application. If a Judge at stage 1 finds that there are merits to your argument, your Court application would receive “leave” (a legal term meaning permission) to proceed to stage 2 which is a hearing before another Judge to present further arguments. If the hearings Judge agrees that procedural fairness has been breached because you never had an opportunity to respond to CIC’s request for documents, your case is returned to CIC to be assessed by a different immigration officer to continue with the processing of your application. You then have a second opportunity to provide documents as required by CIC.
2. If you are outside Canada, you have 60 calendar days to file a notice to the Court. The rest of the Court process is the same as described above.
In a Court application, the person who challenges the CIC refusal is the Applicant and CIC is the Respondent.
I’m currently working with a client who experienced the same situation of being refused because he failed to submit his passport for visa issuance. He never received the visa officer’s letter requesting the passport. He retained me to begin the Court application to challenge the refusal. Later this month, we will submit our legal arguments to the Court. Our legal arguments are comprised of the Federal Court jurisprudence on this issue.
The case law tells us that CIC has a duty to ensure that an email or a letter has been sent to an applicant. If CIC proves that an email or letter has been sent to the applicant, then it’s up to the applicant who bears the risk of any failure in receiving the document. While each case is dependent on the facts, what’s important is that CIC must give procedural fairness to applicants. In the sage words of Justice Mandamin in Caglayan v. Canada (Minister of Citizenship and Immigration),  F.C.J. No. 510 “the respondent has an obligation to deal with the Applicant fairly which goes beyond simply pressing the email send button.”
Outcomes of Court application
After we submit our client’s legal arguments to the Court, we await a response from the Respondent, who is represented by the Department of Justice. If the Respondent agrees with our legal arguments, it may consent to the Court application and the case goes back to CIC for assessment by a different officer. If the Respondent counter-argues in response to our arguments, the application will be reviewed by a Judge who would then decide whether or not to grant leave.
In our client’s case, if we are granted leave we expect to be a Court hearing next year. A decision would be issued by the Judge who hears the arguments at the hearing. The decision would be public, as are all decisions of the Court, and accessible on the Court’s website: (Sean: insert link to “Decisions” of the Federal Court).
Karen Kwan Anderson is an immigration lawyer with Pace Law Firm in Toronto, Canada.