Judicial Review vs. Request for Reconsideration

Federal Court published a decision regarding the government’s policy when to reconsider or re-open an application. In his decision, Justice Phelan came down hard on the government’s inflexible guidelines as they lack “common sense and fairness”. This is a very significant decision for immigration practitioners and lawyers who make requests to Visa Officers or other government officials to have their matters reconsidered.

The facts of Lim v. Canada are relatively simple. The Applicant applied for Canadian citizenship, an Officer requested more information via letter but the letter was not received. The application was deemed abandoned and the file closed. When the Applicant found out, she made a request to have the application re-opened and her request was refused. The Applicant appealed the decision to Federal Court.

In his decision, Justice Phelan writes:

[23] More importantly, the cited grounds to exercise discretion to re-open were arbitrary and unreasonable. The only basis upon which a case would be re-opened is if the department deemed themselves to be in error. That ground takes no account of other factors such as Acts of God, unforeseen circumstances and matters beyond anyone’s control. It is a self-serving and ludicrous basis from which to reject a re-opening request and is hence arbitrary.

[24] It is an unreasonable basis because it lacks reality, common sense and fairness. As put to counsel, the Respondent would not re-open even if it knew that the letter was destroyed in a fire in the department’s offices because officials had not set the fire. It is a breathtakingly unreasonable position.

[25] The refusal to re-open decision must be quashed. [emphasis added]

This decision has wide applications. Off the top of my head, I am reminded of several recent examples:

• A client sponsored his wife. A family member who was against their marriage stole his phone and sent a request to withdraw the sponsorship. CIC/IRCC closed the file and, of course, the sponsor was shocked. The family member confessed and we submitted a request to re-open. It was refused. We then contacted a Program Manager and had the matter re-opened. Potentially, Lim would have made this request easier.
• In another case, the client submitted a MPNP application and she had to return to her home country for a funeral. Due to unforeseen circumstances, she had to extend her visit and her application was deemed abandoned. Again, the Officer refused to re-open the case and consulted a Manager. Eventually, they accepted the circumstances and it was re-opened.

Finally, I’m reminded of a significant case from the Manitoba Court of Appeal, Jiang v. Manitoba (Minister of Labour and Immigration), argued by my friend and colleague David Matas. In that case, he represented a Chinese woman whose MPNP application was refused. He submitted a request for reconsideration and, again, through much work, the program allowed the case to be re-opened:

[8] The Provincial Nominee Program (business stream) does not allow for an appeal from a refusal. Rather, the Program allows for the applicant to re-apply and go through the same procedure all over again. However, the appellant retained a representative who asked that her refusal be reconsidered. Although there is no formal provision for reconsideration, the Program agreed to reconsider her application.

In future, Justice Phelan’s decision in Lim may assist advocates who grapple with decisions that are not rooted in “reality”, “common sense” or “fairness”.