Key advice and tips
As the immigration implications of COVID-19 continue through the summer and into autumn, the Immigration, Refugees and Citizenship Canada (IRCC) website changes daily. These frequent changes have generally left most people confused. However, what has remained remarkably steady are the principles behind what makes an application strong, and what to do if an application is refused.
Preparing a complete application
Before getting to what makes an application strong, it is important to understand that applications need to be complete. Canadian immigration legislation provides that visa officers shall return incomplete applications to applicants.
There are many things that can cause an application to be incomplete, including a missing fee payment, a missing signature on a form, or a missing document. The jurisprudence and principles of procedural fairness are still developing regarding how material the information must be that is missing in order for an application to be returned, whether the missing information must be specifically listed in an application checklist and whether it matters how readily the missing information can be provided. Until these principles are finalized, applicants carefully review their applications to make sure that it contains all the requirements listed in the application checklist as well as the application online instructions and any linked to pages contained within.
Because of COVID-19, there is currently a public policy to not return incomplete applications; however, applicants must specify which documents they were unable to provide because of COVID-19. The public policy does not appear to extend to inadvertent mistakes, and applicants must continue to carefully review their applications.
Preparing a strong application
In a visa application, the applicant has the burden of proof to show that they meet program criteria. What this means is that the applicant is responsible for providing sufficient evidence to satisfy the decision-maker that they will leave by the end of their authorized stay, are eligible for a work permit, are in a genuine relationship with a Canadian, etc. Immigration law provides that visa officers should be able to make a decision based on the information available on the file. They should not have to “fill in the blanks” or “make the case” for the applicant.
It is important that applicants provide corroborative evidence for statements that they make in their application. The evidence that they provide should be relevant. It should also be probative, which is another way of saying persuasive. The evidence included in a visa application should strongly lead the officer to the conclusion that an aspect of program eligibility is met.
During COVID-19, the most common example of applications that have been refused due to insufficient evidence has been applications by Canadian common-law partners to enter Canada. Many people have arrived at a Canadian port of entry without documents to confirm that they have lived together in a conjugal relationship with their Canadian partner for one year or more, and accordingly been denied entry because there was no documentary evidence to corroborate their oral statements.
Two other common examples of evidence that are not probative include bank statements which don’t have the applicant’s name on it (and so it is impossible to determine who they belong to) and photos to demonstrate the genuineness of a marriage that don’t actually have the applicant or their spouse in the photo. In both examples the documents do not actually establish anything. As well, the documents that are provided should be reliable. In assessing reliability, a multitude of factors are considered, including:
the source of the document;
whether the author has an interest in the outcome;
whether the document is on letterhead with contact information;
whether the document is dated and signed;
whether the document is an original document;
whether it was produced for the sole purpose of supporting the application;
whether it comes from an expert;
whether the person is speculating; and
whether better evidence could have been provided and whether there is a reason why it was not provided.
A frequent mistake that immigration lawyers and consultants make is including subjective statements about their clients in their cover letters. In one Federal Court case a lawyer who was asked to demonstrate that their client spoke English included a letter which stated that the lawyer could confirm that the client spoke English to her. The Federal Court ruled that this was clearly a self-serving statement that could be given little weight.
This is not to say that applicants or their representatives should not provide explanations where appropriate. For example, if a couple is trying to show that they are common-law and do not have a joint lease it would be helpful to explain why. It is always better to explain a possible concern for the officer up front rather than to leave the officer guessing.
Of course, it might not be possible for an applicant to anticipate every concern that a visa officer has. Where a visa officer has a concern that does not automatically arise from the legislation or a document checklist then the officer has a legal obligation to put this concern to the applicant.
As well, where a visa officer relies on evidence that was obtained from a source other than the applicant (a relative, an employer, an ex-spouse, another government) and where that information is not publicly available, they will put the concern to the applicant. Finally, where the veracity or credibility of a document is questioned the applicant will be given the opportunity to respond. It can sometimes be unclear where insufficient evidence becomes a credibility concern, and applicants should err on the side of providing more supporting documentation rather than relying on the opportunity to respond to a credibility concern.
Contrary to public perception, the approval rates for most immigration programs are high, especially for those who follow the advice above. Due to a variety of factors, there are, however, a lot of refusals which are unreasonable.
There is, unfortunately, no straightforward process to challenge a refusal. The biggest barrier, as I have written about previously, is that IRCC does not provide the full reasons for the refusal in their refusal letters. Refused applicants must first apply for and obtain the internal refusal reasons, either through a Federal Court judicial review or an Access to Information Act request. While there are no statistics available on this, I believe that the most common reason for a refusal being set aside is because an officer didn’t consider a key piece of evidence.
Officers are required to examine and consider all the forms and documents that are provided in an application. While officers do not need to enumerate and comment on each piece of evidence in their decisions, the more important a piece of evidence that is overlooked, the more it needs to be reflected in the decision. If a visa officer skips over an important piece of evidence, then the presumption that they reviewed the application in its entirety is rebutted. I would say that most of the challenges that I file for applicants are successful on this basis, and I am sure that this is the case for most immigration lawyers who file judicial reviews.
That being said, an applicant won’t get to the point of successfully challenging their application due to an officer not considering key evidence if they did not provide it in the first place. Accordingly, applicants need to ensure that their applications are strong and include as much corroborating evidence as necessary.