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When an immigration officer decides on an immigration application and communicates the decision to the applicant, the general principle is that the immigration officer is functus officio, and any review of that decision will be to a higher body charged with the responsibility of reviewing the decision of the immigration officer.
The legal doctrine of functus officio refers to the principle that once a decision-maker has made a final decision, their authority or jurisdiction over that matter is exhausted and cannot revisit or alter their decision unless in specific exceptional cases. This principle was considered in an application for relief on Humanitarian and Compassionate (H&C) grounds, and clarified by the Federal Court of Appeal in the case of Kurukkal v. Canada (Minister of Citizenship and Immigration), (2010) 406 N.R. 313 (FCA) where it held that the principle of functus officio does not automatically bar the reconsideration of a final H&C decisions and that “the principle of functus officio does not strictly apply in non-adjudicative administrative proceedings and that, in appropriate circumstances, discretion does exist to enable an administrative decision-maker to reconsider his or her decision.“
So, what does this mean and how does it apply to a reconsideration request? This principle extends to a reconsideration request which is a formal process through which an applicant seeks a review of a refused immigration application. Reconsideration requests are possible when there is an obvious mistake by the visa officer. It allows an individual to requests a visa officer to reassess a refused immigration application and address errors, misunderstandings, or omissions made by the visa officer during the initial assessment. Such errors can include missing document submitted in support of the application or clerical errors.
When Can You Request A Reconsideration?
An applicant who has just been denied on a visa or immigration application can submit a reconsideration request. The request can be made for both temporary status (e.g., visitor visas, study permits, work permits) and permanent residency applications. The timing between the decision and a reconsideration matters, and applicants should act promptly – usually within 30 days of receiving the decision. Reconsideration is available in limited circumstances and can be successful, particularly when the applicant can prove that the visa officer has made an error in reaching the decision.
There are no formal rules or fees for requesting reconsideration, as the request is often made via webform. The visa officer has significant discretion in deciding whether to accept or reject the reconsideration and the onus is on the applicant to demonstrate that a reconsideration is warranted. Dissatisfaction with the decision of the visa officer alone does not qualify an applicant for reconsideration. The applicant must provide compelling reasons and provide new evidence (where necessary) which shows that the applicant was prejudiced by the non-consideration of a material fact that was already provided to the visa officer or a clerical error by the visa officer.
Other Legal Avenues
While reconsideration is an option, applicants should also consider other avenues, including judicial review. If dissatisfied with the reconsideration outcome, applicants can seek a judicial review at the Federal Court of Canada. Strict deadlines apply for judicial review. Section 159.91 (1) provides that “(a) the time limit for a person or the Minister to file an appeal to the Refugee Appeal Division against a decision of the Refugee Protection Division is 15 days after the day on which the person or the Minister receives written reasons for the decision”. The applicant has another 30 days to perfect the appeal after the day on which the applicant receives a written reason for the decision.
Conclusion
Visa officers in approaching a reconsideration request must exercise discretion one way or another based on the specific circumstances, and will often consider factors such as: whether the original decision violated principles of natural justice or procedural fairness; whether there was a clerical or other error or omission in reaching the initial decision; and if new evidence submitted by the applicant is based on new facts and is material and reliable.
Reconsideration requests offer an applicant a chance to “rectify” an unjust refusal. The process is highly discretionary, and every case has its unique character. Whether pursuing reconsideration or exploring judicial review, applicants should make informed legal decisions based on their circumstances by seeking professional legal advice. Consider reaching out to an immigration lawyer to explore your options. At Arcstone Law Corporation we provide legal advice and representation on immigration issues. We are also available to review your situation through a consultation with our immigration lawyer. You can contact us by email admin@arcstonelaw.com or book a consultation on our website. All legal services are rendered through Arcstone a law corporation.
