The Federal Court reviewed the refusal of a Federal Skilled
Worker application where the applicant fell short of the required points
because updated proof of a relative’s residence in Canada was considered
missing.
The applicant’s consultant sent the required documents
immediately after the refusal and asked the visa officer to reconsider.
The Federal Court found that refusing to reconsider the
application in these circumstances was unreasonable.
Key Principle
An immigration officer is not always required to reconsider
a refused application.
However, where important evidence is provided within days
of the refusal, clearly answers the concern that caused the refusal, and
may change the result, an officer should exercise reconsideration discretion in
a practical and fair manner.
Requiring an applicant to start the entire process again may
be unreasonable where the issue can be corrected immediately.
Background
The applicant was an Iranian citizen who applied for
permanent residence under the Federal Skilled Worker class.
He relied on five adaptability points for having a
qualifying relative living in Canada.
Immigration authorities later asked for updated proof that
the relative was still residing in Canada.
The applicant’s consultant sent a package of documents in
response, but the visa office concluded that the updated proof of residence had
not been provided.
Without the five adaptability points, the applicant received
only 63 points instead of the required 67 and his application was refused.
On the same day as the refusal, the consultant contacted the
visa office and stated that the documents had already been submitted. The
documents were re-sent the following day.
Court Findings
The Federal Court found that the officer was not required to
contact the applicant again before the original refusal.
The missing documentation related directly to the
requirements of the Federal Skilled Worker program, and applicants are
generally responsible for ensuring that all required evidence is submitted.
However, the Court reached a different conclusion regarding
the request for reconsideration.
The updated documents were provided almost immediately after
the refusal and directly answered the concern that had caused the application
to fail.
The Court noted that the application had already been
pending for several years and that the additional documents appeared sufficient
to bring the applicant above the required points threshold.
In those circumstances, refusing reconsideration simply
because the documents were not considered part of the file at the time of the
original decision lacked common sense, practicality, and basic fairness.
Outcome
The Federal Court allowed the application for judicial
review and set aside both the refusal and the refusal to reconsider.
The matter was returned to another visa officer, who was
directed to consider the updated evidence regarding the relative’s residence in
Canada.
The case shows that reconsideration may be appropriate where
missing or disputed evidence is provided immediately after refusal and clearly
addresses the issue that caused the application to fail.
Case Citation:
Naderika v. Canada (Citizenship and Immigration), 2015 FC 788 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
