I have previously written on this blog on how Immigration, Refugees and Citizenship Canada (“IRCC”) has adapted an exceptionally strict approach to returning incomplete applications. I also have writes in Policy Options about how This approach can be frustrating, as one of its main purposes seems to be to allow politicians to boast about reduced processing times, while ignoring the fact that the experience of people actually applying is often longer than before . I wrote:
The current rigid sorting system distorts a fair comparison of processing times. Suppose a person applies to sponsor a spouse to immigrate to Canada and forgets to include in one of the forms the city where a sibling who is not accompanying them was born. Previously, processing could have been delayed two to three months while IRCC contacted the family, informed them of the error and asked them to provide the information. Now, IRCC would resend the application one to two months after it was filed, and the family would have to resubmit it. If some of the credentials are expired, they may need to collect them again, and the process can easily take several months. Under the previous system, this delay would have added two to three months to the processing time. Under the liberal triage system, technically there is no delay since processing does not begin until the application is resubmitted. So, even though the government can boast of reducing processing times, applicants are often in a worse situation and the time it takes for IRCC to approve their immigration application is lengthened.
I should note that while the paragraph above is critical of Canada’s Liberal government’s approach to returning incomplete applications, Canada’s previous Conservative government essentially adopted (and even created) the same approach.
Several recent Federal Court decisions show how strict IRCC currently is.
Karami v. Canada (Citizenship and Immigration) – Expired passport
In this case, Mehrdad Karami submitted an application for permanent residency under the federal skilled worker category. His consultant accurately entered his passport information into online forms, but inadvertently uploaded Mr Karami’s expired passport rather than his current passport. IRCC rejected the Express Entry application because it was incomplete, as the expired passport had been uploaded. Madam Justice Elliot determined that this was reasonable, stating the following:
The documentary evidence presented by the applicant in support of his application data – his passport number, date of issue and expiry date – was simply not supported by the presentation of the expired passport which contains information different.
G. v. Canada (Citizenship and Immigration), 2017 FC 71
In this case, the applicant applied for permanent residency under the federal skilled worker category. The application checklist states that applicants must provide an official letter issued by a financial institution listing all accounts, be printed on financial institution letterhead, and include the institution’s name and contact information financial. As proof of funds, the applicant uploaded copies of bank statements, mutual funds, etc., but did not provide a letter printed on financial institution letterhead.
IRCC rejected the application because it was incomplete, as the applicant did not provide an “official letter”, but rather downloaded material from the website without any official letter or banking details. Justice Brown determined that this was reasonable, stating that:
I agree with the plaintiff that the regulations do not specify how to prove the required financial information that must be filed. Although the regulations provide for the requirement to provide proof of settlement funds, they do not specify what constitutes or is not accepted as proof; they remain silent on the means by which an applicant can satisfy the requirement to demonstrate sufficient establishment funds. All parties agree on this point, as does the Court.
As a policy, IRCC, as a department, decided that it wanted certain information (in this case, proof of financial information to support the required settlement funds) to be presented with verification not only by the applicant ( who must verify all the information he or she has submitted) but also verified by the financial institution itself by means of an “official letter” containing the contact details of the authorized signatory. The contact details would obviously be helpful in facilitating any due diligence directly with the financial institution that the visa officer may decide to undertake.
Sheikh v. Canada (Citizenship and Immigration)2020 CF 199
In this case, the Court ruled that it was reasonable to reject a sponsorship application due to a typo and the applicant’s failure to verify their application. The Court noted:
The plaintiff clearly feels aggrieved and disappointed by the consequences of his error, which he described as a minor typographical problem. He appears to hold the minister entirely responsible for what happened and says he was not given the opportunity to correct his mistake. This is not the case.
The instructions given to applicants on the Interest to Sponsor web form are very clear. All candidates are clearly asked to:
Make sure this information is correct. It must be the same as what you indicate on your application, if you are invited to apply. Check all fields before submitting.
Enter the name and date of birth as it appears on your passport, travel document or ID.
(Emphasis added.)
There is no explanation as to why the plaintiff did not follow these clear instructions. He clearly initiated the problem by not checking the date of birth he had entered. Had he followed these simple instructions, this application for judicial review would not have been necessary. The applicant’s position appears to be that if they do not follow clear instructions to verify the information they submit, then the Minister is required to consider the reason for any discrepancies and assist them in progressing their sponsorship application . Given the number of applicants, this may not be possible. Furthermore, this is the second time that the Applicant has failed to comply with the instructions. The instructions clearly state that he is the person responsible for the accuracy of any information he submits and that discrepancies may have adverse consequences. The plaintiff attempts to avoid this liability in this application.
Thompson v. Canada (Citizenship and Immigration)2021 CF 914
This was a case in which the Federal Court ruled that IRCC’s decision to reject an application was unreasonable.
The IRCC Express Entry checklist told candidates that:
You must provide proof that you have completed your post-secondary education. Examples of proof of education include a diploma and/or degree.
Mr. Thompson downloaded a document from the University of Alberta which certifies that he completed his post-secondary studies there.
IRCC rejected the application on the grounds that it had not uploaded a diploma.
The Federal Court disagreed, stating that most reasonable people would be led to believe that certified information obtained from the registrar’s office of a reputable Canadian university would be considered sufficient evidence of a CEC on the basis of the wording of the “Instructions for proof of education. “, and even noting that the definition of “example” raises the specter of other types of existing documents that are not limited to the specific documents identified in the instructions.
Amiri v. Canada (Citizenship and Immigration) 2022 FC 929
In a short ruling by the court, Justice Grammond ruled that under Express Entry, candidates were not required to submit supporting documentation for factors for which they did not require points.
De Lara v. Canada (Citizenship and Immigration)2024 CF 203
Even if an application is incomplete, if an officer requests the missing documents, it creates a legitimate expectation.
Advice for candidates
The lesson of these cases is clear. It is imperative that applicants check and recheck the checklist of any program to which they are applying before submitting their application. For example, such as the following exchange between an immigration representative and the IMM report obtained through a Access to Information Act According to the application, IRCC will return an application in the family reunification category as incomplete if the applicant includes a marriage license or celebration certificate instead of a marriage certificate.
I have successfully reviewed Express Entry applications that were unreasonably returned because they were incomplete. However, in these cases, the candidates had complied with the checklists.
It’s also important for applicants to check and double-check what the checklist says before submitting an application, not just when they start the process. Since Express Entry is an online application with an online checklist, what is required can change without warning, including after applicants have already read them and started gathering documents.
Kaur v. Canada (Citizenship and Immigration), 2022 FC 1690
The Federal Court has held that when a person provides a document after the application is filed but before a decision is made, it is unreasonable for a visa officer not to consider it as part of the application.
I agree with the defendant that the officer was not required to request additional documents from the plaintiff. However, in the context of this application, where it is undisputed that an innocent error was made in uploading the documents and that the applicant took steps to correct the error in a timely manner and before a formal decision is taken, I believe that the Educational documents should have been taken into account and addressed in the decision. Either they should have been treated as part of the application, or an explanation given in the decision telling the applicant why they could not be treated as part of the application, and that the applicant could resubmit the whole package before the deadline expires. the timetable provided for in the Policy. In doing so, I consider that the Decision lacked transparency and justification.