What happens when you request reconsideration? Behind the scenes, folks flaunt various levels of success with the process (or various levels of being ignored and never being answered). Recently, more folks are also receiving refusals for apparently not addressing the legal test [note: read my 2021 Vancouver Immigration Blog here as pre-reading for this piece]
What We Knew Before About Reconsideration
What we know so far about reconsiderations comes largely from IRCC’s instructions which oddly link from a service delivery page on reconsideration after refusals to a page solely related to family class with a reconsideration section. As I discussed in my Vancouver Immigration Blog post, IRCC does have specific temporary resident reconsideration instructions posted but we know from my 2021 post that there is a specific policy guide used internally.
What the Abu Dhabi SOPs on Reconsideration Tells Us
I am attaching below a copy of ABDI-IM (the Abu Dhabi Visa Office’s) Reconsideration Requests Standard Operating Procedures (or SOPs).
This document gives a playbook on how reconsideration requests are treated and actually goes beyond the theoretical to talk about how it applies in practice. It’s validity is slightly dated – to April 2021, so presumably these documents were probably updated since then. However, because my ATIP took longer to receive – it is where we are at for now.
CAVEAT: Again, while I present this guide for everyone’s reference, I am still a big proponent of choosing wisely between Federal Court litigation and reconsideration. The ability of a Visa Officer to bolster a poor decision or refuse to reconsider is still subject to a lot of discretion. Unfortunately, the common thing I heard from a lot of new clients and consultation is that their “representative did not tell me about judicial review” or “told me to seek reconsideration and reapply right away.” The decision on what to do after a refusal is much more nuanced, and humbly, I think without knowing the remedy of judicial review or being consulted to discuss it, reconsideration can be ineffectively pursued in some cases.
With that caveat in mind, let’s delve into the biggest takeaways from this doc. Again, we only know this to be the operating process at Abu Dhabi (that is apparently shared at visa offices such as Ankara), but presumably each Visa Office may have different instructions. Another grain of salt to consider.
Takeaways
[1] Procedural Guidance on Reconsideration
Even from the summary section, you get a couple major procedural tidbits. Dissatisfaction and disagreement is not itself a reason to reconsider (often, unfortunately what most poorly drafted reconsiderations look like that I have seen). The timing between decision rendered and reconsideration is also an important factor and why the conversations around reconsideration do require some urgency
Decisions are reconsidered on an ongoing basis and at Abu Dhabi, 30 days is set as the intended period for getting back to an Applicant. I have personally found Abu Dhabi much more responsive than other than Visa Offices, so another grain of salt to consider that you may have different experiences at different visa offices. There’s no legal requirement (nor policy requirement) to get back to applicants in 30 days.
The IRCC webform is the main avenue [if not through MP (Member of Parliament) Requests, HOM (Head of Mission), and MPM (Migration Program Managers]. It has been several years since I relied on HOM and MPM options and MP reconsiderations have not yielded the same results as they once did, but given the ineffectiveness of webforms these days, it does suggest the searching for an alternative path. This is where institutional leverages to reconsideration (such as your employer, a conference organizer, or a prominent third-party inviter) may play huge dividends.
A final point under this particular heading is that general complaints/expressions of displeasure will not be considered as reconsideration requests. While I seem them more rarely than I used to, there are often still occasions (particularly where applicants may lack the appropriate language skills) where reconsiderations requests are not properly expressed.
[2] Specific Examples of Decisions that May Be Reconsidered and IRCC’s Guidance to Officers
Under a heading “assessing reconsideration requests“, the Abu Dhabi SOP goes into much more detail than previous ‘legal test’ based instructions on reconsideration to actually both highlight errors made and give guidance to Officer.
Among the errors are divided into errors of fact, law, and procedural fairness.
For factual errors, their examples are where an absolute statement (‘no travel’ or ‘no ties’) is used. Prescriptively, IRCC recommends Officers used non-absolute statements such as ‘limited ties’, which is why we see this wording often.
Errors in law, on the other hand, are classified as where the Officer fails to consider important information. It is also eye-opening, given some of the language since 1 April 2021 that the wording of some of these grounds has changed, for example no compelling purpose is now the purpose is inconsistent with a temporary stay.
IRCC highlights that some grounds of reconsideration on legal grounds could be (1) where the Officer states no compelling purpose, (2) where the Applicant is attending a conference or wishing to visit a family member, (4) indicating no significant travel when the Applicant has travelled extensively, and (5) indicating limited funds while failing to consider a significant element of financial documents on file.
Probably my favourite quote of the whole SOP is IRCC’s guidance that questioning an applicant’s credibility triggers procedural fairness, and therefore the recommendation is to use instead “not satisfied.” This seems very clearly a recommendation towards veiled credibility and possibly something to utilize in applicant judicial reviews moving forward.
[3] The Wildcard that is “Error noted but no change in decision”
This is probably the biggest tool in the Visa Officer’s toolkit and my suggestion would be this may be the defence against a Chinook decision where an Officer acknowledges the shortcoming of an assessment error, but then goes in to find something else to refuse.
According to the table (reproduced below), there is a standard form for doing this even if there is an acknowledged error in GCMS notes or in refusal letters. The idea is that an officer can state it does ‘not alter the final outcome of the case’ and re-issue a new refusal letter on updated grounds.
Remember, this is the same officer who rendered the underlying decision. While JR does not give you an entirely clean slate (as there is still guidance provided to the new decision-maker – which may or may not fetter discretion, but I’ll leave that to a future post), at least it’s out of the deciding officer’s wheelhouse.
An even stronger decision by that original officer could, if done correctly and in theory, really lockout a future re-application attempt. Again, this is why I think it is so crucial to seek independent advice or counsel on judicial review, even if the representative you have chosen or want to stick with, does not practice it.
Alright, it’s late (midnight almost). I’ll sign off for now, give it an edit in the morning and share with everyone. I hope this post has given a lot of food for thought, amid all the grains of salt (or overall saltiness).
