Admissibility and final decisions on applications in family class
This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.
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After applicants are found to be members of the class they must be assessed for admissibility.
Making a final decision
At visa issuance, officers must still be satisfied that applicants and their family members [R1(3)], whether accompanying or not, are admissible and otherwise meet all of the family class requirements of A11(1) as follows:
- they must have an eligible relative, or spouse, common-law partner or conjugal partner who meets the requirements for sponsorship
- they must prove their identity, age and relationship to their sponsor and meet the requirements of the class
- the applicant and their family members must be admissible
- they must have valid and subsisting passports or travel documents
- they must be coming to Canada to establish permanent residence
When all requirements are met, do the following:
- issue a visa – when required – and a confirmation of permanent residence (COPR) document to the applicant and any accompanying family members
- enter a record of decision in the Global Case Management System (GCMS) notes to indicate that the applicant is a member of the family class
Tell the applicants that the principal applicant must be admitted to Canada as a permanent resident first. Accompanying family members can travel to Canada with the principal applicant, or arrive at a later date before the expiry date on their visas. Accompanying family members who arrive in Canada before the principal applicant are not eligible to become permanent residents.
Additional roles and responsibilities in the final approval process for the spouse or common-law partner in Canada class
The case processing centre:
- updates the GCMS record, entering information related to medical, security and background results on the applicant and dependent children
- sends a letter to the applicant (and, when applicable, to accompanying family members) with instructions to follow to schedule an appointment at a local office for the final stage of processing.
Local IRCC office:
- ensures dependent children are still eligible, i.e. that medical results and background checks are still valid
- verifies that the Right of Permanent Residence Fee has been paid
- completes the process for permanent residence and issues confirmation of permanent residence document
- initiates transfer of information for the Permanent Resident Card process
- sends a message to the visa office that is processing any overseas family members that permanent residence has been approved for the principal applicant
The visa office:
- issues COPR and permanent resident visas where required to eligible dependent children living abroad
These procedures apply to all family class applications, including those sponsored by residents of Quebec. They also apply to cases of refused sponsored applicants who receive temporary resident permits.
If either the applicant or the dependent children do not meet requirements, refuse the application:
- send a refusal letter to the applicant or dependent child, as required;
- enter a record of decision in GCMS Notes whether or not the applicant is a member of the family class;
- send a letter to the sponsor’s address in Canada to advise of the right of appeal as applicable (see “Appeal rights” below). If the sponsor is temporarily outside Canada, the letter may be sent to a non-Canadian address. Include a copy of the refusal letter that was sent to the family class applicant, a Notice of Appeal IRB/CISR 428, and instructions for appeals. The dates on original refusal letters sent to the family class applicants and copies sent to sponsors must be identical. Sign both the original and the copy of the refusal letters.
If sponsors or applicants supply a new address, visa offices must re-send the notification of appeal letter to that address. Visa officers should retain undeliverable returned envelopes and notification of appeal rights letters on applicants' files in accordance with established disposition schedules. Where no new address has been provided, offices are not obligated to make any further attempt to locate sponsors.
Ineligible dependent children
If a dependent child is inadmissible, the applicant may not become a permanent resident. However, if a dependent child is found ineligible, the principal applicant may still receive permanent resident status if they drop the ineligible dependent child from their application. Example: A child over 22 years of age who is married or in a common-law relationship is not a dependent child.
If an officer believes that claimed dependent children are not members of the family class as described in section 2 of the Immigration and Refugee Protection Regulations (IRPR) they should do all of the following:
- request that the applicant provide additional information about the ineligible dependent children, with a specific deadline for response. By the deadline, if the officer still believes that the dependent child is ineligible, send a letter explaining why a visa cannot be issued to the ineligible family members
- issue visas to eligible family members
If sponsored dependent children are ineligible, an officer:
- sends a letter to the principal applicant to explain that visas will not be issued to the ineligible dependent children because they are not dependent children under the definition
- sends a copy of the letter to the sponsor explaining that they have no right to appeal, since there has been no refusal, and explains that if the sponsor appeals, an appeals officers will file a motion of non-jurisdiction with the IAD
- counsels the sponsor to ask the processing office to refund the Right of Permanent Residence Fee for the ineligible dependent children
- at the request of an appeals officer, forwards the file and any supporting documents explaining why visas were not issued to the ineligible children
If a sponsored dependent child is removed because they provided fraudulent or false information, and if the principal applicant was either involved in or aware of the misrepresentation, the whole family should be refused [A40(1)(a)].
Except in cases in which an ineligible individual is the principal applicant, the sponsor has no right of appeal to the IAD when a child is refused for failing to meet the definition of dependent child because there has been no family class refusal. The applicant or ineligible dependent child (not the sponsor) may seek redress from the Federal Court.
A Canadian citizen or permanent resident who sponsors a foreign national as a member of the family class may appeal the refusal of the application for permanent residence to the IAD [A63(1)]. The sponsor does not have the right to appeal in the following cases:
- The applicant is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality [A64(1)].
- The applicant is refused on the ground of misrepresentation, unless the applicant is the spouse, common-law partner or child of the sponsor [A64(3)].
- The sponsor discontinued or withdrew their sponsorship application.
If the IAD upholds the officer’s decision that the person being sponsored is not a member of the family class, the IAD has no jurisdiction to consider humanitarian and compassionate considerations.
For appeals of application refusals based on the age of a dependent child, the principle of de novo applies. The IAD decides whether or not to grant the application based on the section R2 provisions related to dependent children that are in force at the time the IAD makes its decision.
Reconsideration and enquiries after refusal
Applicants or their representatives often submit information after a refusal and request that an officer reconsider the decision. If an office receives a request to reconsider a decision, an officer must consider the request and decide whether or not to exercise their discretion to reconsider the previous decision. The legal doctrine of functus officio does not automatically bar reconsideration of final 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 a previous decision. However, reconsideration should only be done where warranted, in exceptional cases. An applicant’s dissatisfaction or disagreement with the decision does not by itself qualify as an exceptional case.
The onus is on the applicant to satisfy the officer that reconsideration is warranted. The decision-maker should consider all relevant factors and circumstances to determine whether an application merits reconsideration. The decision whether or not to reconsider the application must be recorded in GCMS and communicated to the applicant. The applicant’s correspondence requesting reconsideration and any supporting documents should be kept on file.
A (non-exhaustive) list of factors that may be relevant to consider:
- whether the decision-maker failed to comply with the principles of 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, 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
It is preferable that the initial decision-maker review any request for reconsideration. However, where that is not possible, a request for reconsideration can be reviewed by a different decision maker as long as that person has authority to make decisions of the type under review.
Officers making a decision on whether or not to reconsider should ensure that the following information is entered in GCMS Notes:
- the reconsideration decision
- the reasons for the reconsideration decision
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