Humanitarian and compassionate (H&C) considerations assessment: Reconsideration of a H&C decision

A Stage 1 approval is considered an interim decision since the applicant has not yet received confirmation of permanent residence. If an inadmissibility or another significant factor comes to light following a Stage 1 approval, the decision-maker should consider this information and, if appropriate, revisit the Stage 1 decision. If the decision-maker revisits the Stage 1 approval, they must give the applicant an opportunity to respond before reversing the positive Stage 1 decision.

When the Stage 2 decision-maker can render a decision without returning the file to Stage 1, and it is reasonable to do so, they should do it.

The legal doctrine of functus officio does not automatically bar reconsideration of final H&C decisions (MCI v. Kurukkal, 2010 FCA 230). The decision-maker may exercise discretion to reconsider or refuse to reconsider the applicant’s request to reopen a previous decision. The decision-maker should reconsider their decisions in exceptional cases only.

An applicant’s dissatisfaction or disagreement with the decision does not by itself qualify as an exceptional case.

Reconsideration requests should be returned to the original decision-maker, if possible.

1. The decision-maker may decide to re-open the case to consider the new evidence, even if the case is under litigation at the Federal Court.
2. After reviewing the new submissions and the original file, the decision-maker will decide whether or not to change the original decision.

The decision-maker must first determine whether a reconsideration of a previous H&C decision is warranted based on the information submitted. The onus is on the applicant to satisfy the decision-maker that the reconsideration is warranted. The decision-maker should consider all relevant factors and circumstances to determine whether a case merits reconsideration. The following is a non-exhaustive list of factors that may be relevant to consider:

• whether the decision-maker failed to comply with the principles of natural justice or procedural fairness when the decision was made
• whether the applicant has requested correction of a clerical or other error (for example, a decision was made by a decision-maker who did not have the delegated authority)
• if new evidence is submitted by an applicant, whether the evidence is based on new facts (facts that arose after the original decision was made and communicated to the applicant) and whether it is material and reliable; decision-makers will decide if that evidence would be more appropriately considered in the context of a new application
• when additional evidence is presented that was available at the time of the original decision, decision-makers will consider why it was not submitted at the time of the original application and whether that evidence is material and reliable
• the passage of time between the date of the original decision and the date of the reconsideration request
• whether there were any concerns regarding fraud or misrepresentation relating to a material fact in the original decision or with the new submissions
• whether, if there is a negative decision from the Federal Court after judicial review, there are any extenuating factors that would warrant reopening and reconsidering the decision

If a decision-maker decides to reconsider the decision, they will:

• re-open the H&C decision
• request information from the applicant, if necessary
• make a new decision and send approval/refusal letter Stage 1

If a decision-maker decides not to reconsider, they will inform the applicant in writing. The decision-maker should justify their decision not to reconsider. They may refer to the original decision to explain the refusal.

The decision-maker must record the reason why the reopening request was granted or refused based on the reviewed submissions. For example, a decision might indicate the following reasons: passage of time, new information not previously submitted or procedural fairness error. Determining whether a detailed analysis is necessary should be on a case-by-case basis depending on factors such as whether the decision was re-opened or the kind of submissions.

The decision-maker should enter the following in the Global Case Management System (GCMS):

• the reconsideration request and the decision, and
• the reasons for the reconsideration decision