Request for Reconsideration for a Temporary Resident Application
A reconsideration request is when an applicant makes a request to IRCC asking it to reconsider a decision, often the refusal of a temporary resident application (work permit, study permit). This is not a formal process therefore there is no application form, processing fee, or specific deadline to adhere to. Asking IRCC to re-examine a previously refused application is often the last resort before Judicial Review.
A successful reconsideration request must prove the decision was made in error either in fact or in law. For example:
- The visa officer refused a spousal open work permit application because there was no corresponding LMIA number. However, spouses of high skilled workers are exempted from needing an LMIA as per IRCC’s program delivery instructions for LMIA-Exempted work permits and S.205 of the IRPR. This decision would constitute an error or misapplication of the law.
- The visa officer refused a spousal open work permit application because the principal applicant (the spouse) citing they did not submit evidence they were working in the appropriate TEER to qualify their spouse for an open work permit. However, they submitted an offer of employment and reference letter which clearly outlines job duties to corresponded with the appropriate NOC. This decision would constitute an error in fact.
Elements of a Reconsideration Request
While there’s no formula for the perfect reconsideration request, it’s helpful to begin by providing the facts or timeline of events. This may include events leading up to the refusal all the way to the decision itself. The timeline should be factual only and not include personal opinion or sentiment. The purpose is to provide an undisputed overview of events.
Following the timeline of events, it’s wise to provide a legal analysis and explain why the decision was made in error based on relevant case law. For example:
- When a decision directly impacts a child in Canada, an officer must consider the best interests of the child and give this significant weight. Commonly quoted case law in this scenario may include Baker v. Canada, [1999] and Kanthasamy v. Canada, 2015.
Following an analysis of the law and how it must be or should have been applied, it’s important to detail the consequences of the officer’s decision (examples may include loss of employment, loss of family reunification) and the relief you are requesting. At this point, using clear and concise language is crucial while also spelling out your expectations of procedural fairness in your submission.
IRCC’s Response
A reconsideration request is often submitted by IRCC webform. Once submitted, IRCC will typically reply confirming it has received your request and it has been sent to the appropriate department. After this, one of two things will likely happen:
1. You will receive a letter back stating an officer has reviewed your original submission along with your request for reconsideration and they will not re-open your file; OR
2. You will receive a letter back stating, “After careful review of the reconsideration request, and based on the information provided, we have determined that sufficient grounds exist for your application to be re-opened.”
If you receive the second letter, your file is being sent back for redetermination at which point you wait for further instruction from IRCC. This may or may not mean your file will be approved and there is no specific timeframe on when you can expect to receive an answer. During this time, you should be mindful of the 90 days restoration period which begins on the date of your refusal letter.
If you receive the first letter and your file will not be reviewed, you may decide to seek further legal action.
Judicial Review Timelines
Judicial review is the legal process where the Federal Court of Canada reviews an immigration decision made by IRCC, a visa office, or a tribunal (like the Immigration Division or Immigration Appeal Division). It’s not a new application and it’s also not an opportunity to present new evidence that was not in front of the visa officers in the original submission.
Instead, the Court looks at whether the officer’s decision was fair and reasonable. In other words, the judge will consider: “Did the officer make a reviewable error in law, fact, or process?”
Federal Courts Immigration and Refugee Protection Rules (SOR/93-22) provide deadlines to seek leave.
Under Rule 7(1) – Time limit for application for leave
The time limit for commencing an application for leave is:
(a) 15 days after the day on which the applicant is notified of the decision, if the decision was made in Canada; and
(b) 60 days after the day on which the applicant is notified of the decision, if it was made outside Canada.
Days should be counted as calendar days, not business days.
Two-Step Process
Judicial Review is a two-step process:
1. Leave Stage: You/your legal counsel apply for permission (leave) to have your case heard.
2. Hearing: If leave is granted, both sides (the applicant and the respondent which is IRCC) present arguments, and the judge decides whether the decision should be quashed (set aside).
If successful, the Court does not reverse the decision necessary and approve the application. Instead, it sends the case back to IRCC to be reconsidered by a different visa officer, with instruction to correct the error. If unsuccessful, the original refusal stands and your options are to apply-again.
Most cases do not make it past the Leave Stage. The Court must decide if there is a strong enough case. Was the officer’s decision unreasonable or was the applicant’s procedural fairness breached? The applicant must show there was a reviewable error and not simply a difference of opinion.
Considering the Options
Although reconsideration requests are not a formal process, some applicants have seen success using this method when they can prove, via case law and evidence, the decision maker erred in refusing their application.
You may decide to retain a professional to draft a legal letter for you in which case they will have you complete the IMM5476 (Use of a Representative form) before submission.
The article above is intended to provide general and non-case specific information on immigration related matters. It should not be used or relied on as formal legal advice.
