The
Federal Court considered whether Citizenship and Immigration Canada’s return of
a Federal Skilled Worker application as incomplete was a decision that could be
challenged by judicial review.
The
Court held that the application had never been processed because it did not
comply with the applicable Ministerial Instructions. Its return was therefore
not a refusal of the permanent residence application and was not subject to
judicial review.
Key
Principle
Under
subsection 87.3(5) of the IRPA, the return of an application that does
not comply with applicable Ministerial Instructions is not a decision to refuse
the requested visa or status.
Applicants
are responsible for ensuring that their applications comply with the application
requirements and forms in effect when the application is received.
Background
The
applicant was a Greek citizen who had obtained a PhD in Economics from
Concordia University. He applied for permanent residence under the Federal
Skilled Worker PhD stream.
His
initial application was returned because he had not included his birth
certificate. He resubmitted the application after obtaining the document.
In
the meantime, new Ministerial Instructions had come into force requiring
applicants to use a new version of Schedule 3.
The
applicant resubmitted his application using the previous version of Schedule 3.
The Centralized Intake Office returned the application again, explaining that
the required updated form had not been provided.
The
applicant sought judicial review, arguing that the changes to the form were
largely superficial and that the information was already available elsewhere in
his application.
Court
Findings
The
Federal Court found that the return of the application was not a reviewable
decision.
The
Court noted that subsection 87.3(5) expressly provides that retaining,
returning or otherwise disposing of an application under the Ministerial
Instructions does not constitute a decision to refuse the requested visa or
status.
The
applicant’s application had never reached the processing stage. It was returned
during the initial screening because it did not comply with the applicable
instructions.
The
Court acknowledged that the changes to Schedule 3 were relatively minor.
However, the applicable Ministerial Instructions expressly required applicants
to use the new version of the form. The officer was therefore entitled to
return an application that did not comply with that requirement.
The
Court also emphasized that applicants must take responsibility for ensuring
that their applications contain the documents and forms required by the
applicable instructions.
Allowing
every return of an incomplete application to become the subject of judicial
review would undermine the efficiency of the immigration application system.
Outcome
The
Federal Court dismissed the application for judicial review because the
return of the incomplete Federal Skilled Worker application was not a
reviewable refusal.
Case Citation:
Filippiadis v. Canada (Citizenship and Immigration), 2014 FC 685 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
