The Federal Court reviewed the refusal to reconsider a
permanent residence application under the Business Investor class after
the applicants failed to provide documents requested by the visa officer.
The Court upheld the decision because the applicants and
their representative had been given repeated opportunities to provide the
required documents but failed to do so within the prescribed period.
Key Principle
There is no general obligation on a visa officer to
reopen or reconsider a permanent residence application simply because
additional documents are provided after refusal.
An applicant must demonstrate that unusual circumstances or
the interests of justice justify reconsideration.
Applicants are also responsible for ensuring that their
applications are complete and submitted within the required time. A
representative’s failure to provide requested documents will generally be
attributed to the applicant unless the circumstances are sufficiently
extraordinary to engage procedural fairness.
Background
The applicants were citizens of the United Arab Emirates who
applied for permanent residence under the Quebec Business Investor class.
In June 2012, the visa officer requested additional
documentation needed to establish their eligibility. Their representative
indicated that the documents had been prepared and sent, but the officer did
not receive them.
The officer subsequently sent a procedural fairness letter
in September 2012 giving the applicants 30 days to provide the documents and
warning that failure to do so could result in refusal.
A second letter was sent in December 2012 providing another
30 days.
The requested documents were still not provided, and the
permanent residence application was refused in March 2013.
The applicants later submitted the missing documents with a
request for reconsideration. The officer refused to reopen the application.
Court Findings
The Federal Court found that the officer was aware of the
discretion to reconsider the application but reasonably chose not to exercise
it.
The applicants had received two clear opportunities
to provide the requested documentation and had been warned that failure to do
so could result in refusal.
Their reconsideration request did not provide a reasonable
explanation for why the documents had not been submitted during the original
processing. The representative simply stated that the documents had not been
sent for unexplained reasons.
The Court emphasized that the mere submission of new
information after a refusal does not create an obligation to reopen an
application. The applicants had to demonstrate circumstances that made
reconsideration necessary in the interests of justice or sufficiently unusual.
The Court also rejected the procedural fairness argument.
The applicants had nearly a year between the initial request and the refusal to
ensure that their application was complete.
The representative’s failure, without more, did not justify
relieving the applicants of responsibility for ensuring that the requested
documents were provided. The Court noted that only in extraordinary
circumstances can a representative’s incompetence or omission amount to a
breach of natural justice.
Outcome
The Federal Court dismissed the application for judicial
review and upheld the officer’s refusal to reconsider the permanent
residence application.
Case Citation:
Ghaddar v. Canada (Citizenship and Immigration), 2014 FC 727 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
