Immigration Refugees and Citizenship Canada (“IRCC”) has repeatedly stated across several platforms that hiring an immigration representative is not needed and that applicants should be able to submit on their own by following IRCC’s guides. Although this is technically true, sometimes strictly following IRCC own “guides” could result in misdirection and rejection. The guides are oftentimes confusing and occasionally contradict the law or Federal Court judgments.
Additionally, the stress and anxiety of submitting an immigration application, for self-guided applicants, sometime results in mistakes. For example, important documents could have been inadvertently forgotten or maybe the wrong one was uploaded at the time the application was submitted. Perhaps the most efficient tool to amend the mistake is to provide the right document via IRCC’s webform. An applicant will only be able to make use of this tool if he/she has already received the acknowledgement of receipt (“AOR”) letter from IRCC containing the application number and Unique Client Identifier (“UCI”).
However, if you are a self-guided applicant and made a mistake and forgot to include an important document at the time of submission, you could have been sidetracked by IRCC’s guidance. In its Twitter account IRCC said on December 2, 2022 that applicants can only send missing documents in limited circumstances, and that is simply not true.
In an attempt “to clarify” that misinformed Tweet IRCC later said – on the same platform – on December 8, 2022 that applicants cannot send documents “(…) unless you receive a request from IRCC (…), and again that is not accurate to say the least.
By coincidence, on that same date the Federal Court release its judgement of Kaur v. Canada (Citizenship and Immigration), 2022 FC 1690 which is for judicial review of a refused Permanent Residence (“PR”) application. In this case the applicant, Kulwinder Kaur (“Kaur”), who applied for Permanent Residence on August 24, 2021 under the Temporary Residence to Permanent Residence program (also known as TR to PR), did not include her education documents at the time of submission. Kaur noticed her mistake and, on October 6, 2021, she notified the IRCC and uploaded the education documents. On October 14, 2021 an Immigration Officer determined that the application was incomplete because the documents were not provided at the time of submission.
The Federal Court, however, was of a different opinion and allowed the application for judicial review, and sent the matter back “to be redetermined by a different officer with the full file documents before the officer, including the education documents.” Justice Furlanetto commented on paragraph 28 that:
“I agree with the Respondent that there was no obligation on the Officer to request further documents from the Applicant. However, in the context of this application, where it is not disputed that an innocent mistake was made uploading the documents and that the Applicant took steps to correct the error within the timeline and before a formal decision was made, it is my view that the education documents should have been considered and addressed in the Decision. Either they should have been treated as part of the application, or an explanation given in the Decision advising the Applicant why they could not be treated as part of the application, and that the Applicant could resubmit the full package of documents again before the expiration of the timeline under the Policy. In not doing so, it is my view that the Decision lacked sufficient transparency and justification.”
In this judgement the Federal Court made it clear that although IRCC is not obliged to request missing documents, any document provided via webform before a final decision is made should be part of the file and that the decision should be made taking into those documents as well. Better late than never, despite IRCC’s apparent different opinion.
Sometimes IRCC own guidance has contradictory or wrong information. Having an immigration lawyer by your side is not a requirement, but can help you navigate the choppy waters of Canadian immigration and make your plans materialize.
P.S.: The Tweets from IRCC were still posted on December 12, 2022. However they seem to have been deleted on December 14, 2022.
