In the event of a refusal of an immigration application, it is sometimes possible to request reconsideration of the decision from the original decision-maker rather than immediately seeking to appeal the decision before the courts.
The clearest example of where a reconsideration request can be made is where the immigration authorities made some obvious mistake in refusing the application, such as missing a document that was provided in support of the application. In such instances, the immigration decision-maker may be willing to re-open their decision to correct their mistake once this is pointed out to them in a reconsideration request.
In more complex situations a reconsideration request is still possible, but its chances of success may become less clear. The Federal Courts have described in various cases that administrative decisions, such as immigration decisions, are not subject to a high degree of finality and the immigration authorities should re-open and re-decide cases in appropriate circumstances.
The jurisprudence confirms that immigration officers have the jurisdiction to reconsider their decisions on the basis of new evidence or further submissions: Canada (Citizenship and Immigration) v Kurukkal, 2010 FCA 230.
The process consists of two steps:
- First, the officer must decide whether to “open the door to a reconsideration”;
- Then if the officer decides to re-open the case, the second stage involves an actual reconsideration of the decision on its merits: Gill v Canada (Citizenship and Immigration), 2018 FC 1202.
The Decision to Re-Open or Decline Reconsideration
There is no general obligation on officers to reconsider their decisions; the onus is on the applicant to show that this is warranted in the interests of justice or because of the unusual circumstances of the case: Hussein v Canada (Citizenship and Immigration), 2018 FC 44.
Immigration officers can therefore decline to re-open their decisions to consider reconsideration requests at all. Where they do decide to re-open the case, they must consider any new evidence and submissions. In all instances, the decision whether to re-open and to reconsider is within the discretion of the original decision-maker and as a result the decision is unlikely to be reconsidered unless strong reasons are presented as to why the officer should change the decision.
Those seeking reconsideration should also keep in mind the deadlines for appealing the negative decision to the courts. An appeal to the Federal Court must be made within 15 days of receiving the decision if the decision was made in Canada, and within 60 days if the decision was made outside Canada. A reconsideration request may take longer than that to prepare, file and have a decision made. In some cases, the immigration authorities may completely ignore the reconsideration request and make no decision. In these situations, it is important to exercise your right to appeal before the deadlines to do so expire.
Seeking reconsideration therefore provides an alternative to appealing a negative decision and can also precede an appeal as a first attempt to remedy a refusal.
The Law Office of Matthew Jeffery has years of experience assisting clients with reconsideration requests and we can help you with your case