The humanitarian and compassionate assessment: Reconsideration of a negative H&C decision

Applies to

• in Canada
• overseas

In exceptional circumstances, reconsideration of a decision may be warranted.

H&C stage 1 approvals

A stage 1 approval is considered an interim decision since the applicant has not yet received confirmation of permanent residence. If inadmissibility or another significant factor comes to light following a stage 1 approval, you should take this information into account and, if appropriate, revisit the Stage 1 decision. In case of revisiting stage 1 approval, you must provide the applicant with an opportunity to provide submissions prior to the decision being made to reverse the positive Stage 1 decision.

In situations where the application can be resolved at Stage 2 without return to the original decision maker, and it is reasonable and practicable to do so, then this should be done.

Guidelines for reconsideration requests after refusal (at stage 1 or 2)

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 for reopening of a previous decision. However, reconsideration should only be done in exceptional cases.

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

Return reconsideration requests to the original decision maker when possible. For reconsideration requests previously determined by a local CIC, the request should be sent to BRO-V for assignment.

Reviewing a request for reconsideration is a two-step process:

1. Decide whether to re-open the case and consider the new evidence, even if the case is under litigation at the Federal Court.
2. If you decide to reconsider, review the new submissions and the original file and decide whether or not to change the original decision. 

Factors to consider when deciding whether to reconsider:

You 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 officer that the reconsideration should be done. You 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 (e.g. a decision was made by an officer who did not have the delegated authority).
• If new evidence is submitted by an applicant, is the evidence based on new facts (i.e. facts that arose after the original decision was made and communicated to the applicant) and is it material and reliable. Decide whether 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, consider why it was not submitted at the time of the original application. Determine whether that evidence is material and reliable.
• The passage of time between the date of the original decision and the date of the reconsideration.
• Whether there were any concerns regarding fraud or misrepresentation relating to a material fact, in the original decision or with the new submissions. 
• If there is a negative decision from the Federal Court after judicial review, you may refuse to re-open if there are no extenuating factors to warrant reconsideration.

Once you have decided whether or not to reconsider:

If the decision is to reconsider do the following:

• re-open the first H&C decision
• request information from the applicant (e.g. medical, procedural fairness letter)
• make a new decision and send approval/refusal letter Stage 1.

If the decision is not to reconsider notify the applicant. You may refer to the original refusal to explain the refusal because the applicant was already informed of the reasons that their application was refused.

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