IRCC must consider documents updated by webform or explain why not (Federal Court decision)

In the context of a TR to PR pathway application, the Federal Court found that IRCC must consider documents uploaded by webform after an application or explain why they have not considered them.

Important: you have 15 days from the date of refusal to file an application for leave and judicial review. It is important to book a consultation with a Canadian Immigration Lawyer as soon as possible.

Summary of the Federal Court decision

In Kaur v Canada (Minister of Citizenship and Immigration), 2022 FC 1690, the Applicant applied for the TR to PR within the timeframe. The Applicant forgot to upload her educational documents. While the application was in processing, the Applicant submitted a webform to (1) notify IRCC, (2) provide the missing education documents and (3) request that they are added to the file.

IRCC refused the application as incomplete. IRCC found that the Applicant did not provide all the documents when the application was filed.

Justice Furlanetto of the Federal Court of Canada disagreed. The Court found that IRCC’s decision was unreasonable and overturned the decision.

While the Court found that IRCC does not have an obligation to consider documents after an application has been made, the Court found that the Applicant made an innocent mistake when uploading the education documents and the Applicant uploaded the documents within the timeline.

The temporary public policy provides discretion to the officer to request additional supporting documentation. The Court found that IRCC should have either (1) included the documents as part of the application or (2) explained why they cannot be treated as part of the explanation. Since IRCC failed to do either, the Court found that the decision lacked sufficient transparency and justification. The refusal was overturned, and another officer examined the application.

If you have received a refusal but updated your application before a decision with the correct documents, you should contact an immigration lawyer. You can obtain legal advice and explore the possibility of filing an application for leave and judicial review.

The analysis of a Canadian immigration lawyer Cédric Marin

It remains to be seen if this decision will create a precedent for other immigration streams. Of note, the temporary public policy explicitly provided discretion to the officer, and this was a time-limited pathway. These were important considerations that led to the finding that the decision from IRCC was unreasonable. Not all programs offer discretion, nor are they time-limited.

Regarding other temporary public policies like the PGWP extensions, the Kaur decision may be applicable. Namely, both the PGWP and the TR to PR were time-limited policies. For the PGWP extension, there is some discretion for documents,[1] such as a letter of completion or final transcripts, but there is no broad discretion like the policy for the TR to PR pathway.

In regards to Express Entry, it is not a “time-limited” pathway, and the instructions to officers offer less discretion under the completeness check (R10). An applicant must provide mandatory documents, and officers have little discretion. For example, officers have some discretion to consider why an Applicant cannot obtain a police certificate, but there is no discretion in the instructions for letters of reference from past employers.

The Court explicitly found that IRCC does not need to consider documents submitted after an application. Yet, they seem to allow an exception to this rule for an innocent mistake. IRCC does not like this approach. On the same day that Kaur was decided, they published a tweet saying not to make a webform and not to update your application. In fact, when you go to submit a webform, there is no option to update a TR to PR application. You should not take your legal advice from a tweet by IRCC. The Kaur decision tells you that yes – you can update your TR to PR application before a decision is made.

Will the innocent mistake be applied to other programs? After all, IRCC keeps rolling out new portals for applications. Uploading the wrong document by accident can be the difference between staying in Canada and returning to your home country.

It remains to be seen how other judges with similar cases will decide this exception, and how precedents will develop. If you are in a similar situation, seek legal advice and discuss the specifics of your case.

How can we help you to overturn your refusal?

Cédric Marin, the author of this blog, is a Canadian immigration lawyer. He represents clients at the Federal Court by filing applications for leave and judicial review. Previously, he was a law clerk at the Federal Court of Canada. He provided legal advice to a judge on applications for leave and judicial review. He holds a Civil Law degree, Juris Doctor degree and Master of Laws. His Master of Laws focused on decisions by the Federal Court. Previously, Cédric was also a member of the Immigration and Refugee Board and an expert at the United Nations. We encourage you to book a consultation to explore overcoming your refusal.

[1] https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/coronavirus/temporary-residence/study-permit/pgwpp.html#sec6.6.1