Refusals and Remedies

• Author: Michael Battista/Adrienne Smith
• Pages: 217-248

217

10

Refusals and

Remedies

I. Introduction ............................................. 218

II. Delegation and Authority to Render Decisions .................. 218

III. Responding to a Procedural Fairness Letter .................... 219

A. Procedural Fairness .................................. 220

B. Format ............................................ 220

C. Responding to a Procedural Fairness Letter .............. 221

IV. Requesting a Reconsideration ............................... 222

V. Immigration Appeal Division ................................ 224

A. Jurisdiction ........................................ 224

B. Discretionary Jurisdiction ............................. 226

C. Transitional Provisions ............................... 228

D. No Jurisdiction to Hear Appeal ........................ 228

E. Procedures ......................................... 229

F. Timelines .......................................... 235

VI. Federal Court ............................................ 236

A. Role of the Federal Court ............................. 237

B. Jurisdiction ........................................ 237

C. Procedures ......................................... 238

D. Timelines .......................................... 247

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218 Part III Barriers to Family Reunification

I. Introduction

Nothing is more concerning for a sponsored applicant under the family class or spouse

or common law partner in Canada class (SCLPC) than receiving a refusal letter. This

refusal is an earth-shattering pronouncement that they will be unable to join their

loved ones permanently in Canada. The finality of receiving a letter of refusal can

feel overwhelming; fortunately, there are different avenues an applicant may be able

to take advantage of to try to remedy their refusal. These remedies include requesting

reconsideration, making an appeal to the Immigration Appeal Division (IAD); apply-

ing for judicial review in the Federal Court; or—if the application has not yet been

refused—providing Immigration, Refugees and Citizenship Canada (IRCC) with

additional evidence by responding to a procedural fairness letter.

II. Delegation and Authority to Render Decisions

Except as is otherwise provided for in section 4(1) of the Immigration and Refugee

Protection Act,1 the minister of immigration, refugees, and citizenship is responsible

for the administration of the IRPA. The minister is therefore responsible for appeals

pertaining to visa refusals of family class applications and residency obligations. Sec-

tion6(1) of the IRPA states, “The Minister may designate any persons or class of

persons as officers to carry out any purpose of any provision of this Act, and shall

specify the powers and duties of the officers so designated.” This allows the minister

to delegate their authority to different bodies under the federal government.

IRCC has developed an “instrument of designation and delegation.” It contains

a summary of the minister’s delegated authority of the powers that are vested under

the IRPA in relation to the application of the law and to the officers who carry out this

delegated authority.2 This instrument is extremely comprehensive in detailing who is

conferred with this authority.

Most of the authority under the IRPA is given to officers within IRCC; however,

some of these duties and powers are delegated to persons outside the department,

including officers at visa offices overseas or at the Canadian Border Services Agency

(CBSA).3 The CBSA is an agency that operates under the authority of the Depart-

ment of Public Safety and Emergency Preparedness (PSEP).

1 SC 2001, c 27 [IRPA].

2 Department of Citizenship and Immigration, Instrument of Designation and Delegation—

Immigration and Refugee Protection Act and Regulations (Ottawa: CIC, 2021), online (pdf ):

Government of Canada <https://www.canada.ca/content/dam/ircc/migration/ircc/english/

resources/manuals/il/il3-eng.pdf>.

3 Ibid.

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Chapter 10 Refusals and Remedies 219

As a result, there are other federal bodies conferred with powers to deal with the

IRPA outside IRCC. PSEP, and by extension the CBSA, is the authority responsible

for the administration of the IRPA4 as it relates to the following:

• examinations at Canadian ports of entry;

• the enforcement mechanisms of the IRPA (arrests, detentions, and removals);

• the establishment of policies to bring about the enforcement of the IRPA,

including inadmissibility; and

• declarations referred to in section 42.1 of the IRPA.5

The minister has delegated authority to the CBSA to represent their authority

in certain proceedings, including immigration appeals. CBSA officers have the del-

egated authority to make applications for non-disclosure of information during an

appeal before the IAD under sections 63(1) and 63(4) of the IRPA.6 The establish-

ment of the CBSA also brought about a shift, in that CBSA hearing officers, instead

of IRCC officers, now represent the minister before the IAD in certain matters.7

Furthermore, section 167 of the IRPA provides that the minister may be repre-

sented by legal or other counsel in any proceeding; however, the Department of

Justice is only relied on in rare circumstances. While IRCC remains the department

that renders decisions on immigration matters, especially first instance approvals or

refusals, CBSA hearing officers most commonly represent the minister in any given

immigration proceeding once an appeal has been launched.8

III. Responding to a Procedural Fairness Letter

When an application for sponsorship has been found to be complete, but the review-

ing officer is not satisfied with the submitted documents or is concerned about cred-

ibility, IRCC will generally send the applicant a procedural fairness letter (PFL). This

gives the applicant an opportunity to provide additional information and evidence to

overcome the insufficiency in their original application. This type of request from

IRCC is extremely common, especially in more complex cases, where documentary

evidence may assist in rectifying an insufficiency.

4 IRPA, s4(2).

5 CIC, ENF 19: Appeals before the Immigration Appeal Division (IAD) of the Immigration and

Refugee Board (IRB) (Ottawa: CIC, 2020) at 14, online (pdf): <https://www.canada.ca/

content/dam/ircc/migration/ircc/english/resources/manuals/enf/enf19-eng.pdf> [ENF 19].

6 Ibid at 14.

7 Ibid at 15.

8 Ibid.

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