In landmark ruling, court upholds ability to challenge return of immigration applications for incompleteness

A federal court has upheld the right for applicants to challenge the return immigration applications for incompleteness.

This is a landmark ruling in Canadian law, for under Canada's current immigration system, an application being returned as incomplete is often the worst possible outcome an applicant can face.

In the case ruled upon,  IMM-23491-24, Devgon v Canada, Preet Kamal Devgon had applied to sponsor her parents for permanent residency.

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After the applicants had responded to the reviewing officer’s request for additional documents in support of their permanent residence application, the officer had returned their application as incomplete, on account of one of their CVs having contained a one-year chronological gap (a CV with no gaps had been requested).

The applicants had then submitted to Immigration, Refugees and Citizenship Canada (IRCC) a request for reconsideration, and submitted along with this request a complete, gapless CV.

IRCC had responded by refusing the request for reconsideration, saying that the determination of the application as incomplete rendered the application ineligible for processing.

Under IRCC’s processing rules, it is standard practice that when an immigration application is returned as incomplete, the situation is treated as if no application had been received in the first place.

In this case, the decision to return the application as incomplete had the effect of preventing all possibility of proceeding with the family sponsorship application, for Devgon had received the invitation to sponsor her parents by lottery through the Parents and Grandparents Program (PGP).

As there was no guarantee that Devgon would ever receive a second invitation to sponsor through the PGP, the return of the application as incomplete effectively blocked her parents from being able to submit their permanent residence application.

As the federal judge in this case, Justice Battista, noted in his ruling, the use of Ministerial Instructions to control the intake of applications has the effect that the return of an application as incomplete can amount in practice to a final, irrevocable refusal, since due to the nature of the defined intake mechanisms, there is no guarantee that an applicant will ever have the opportunity to submit a subsequent application.

In their application for judicial review, the applicants argued that the return of their application as incomplete, and the immigration officer’s refusal to reconsider their application, were unreasonable.

In its defence, IRCC argued that the officer’s decision to return the application as incomplete was “non-justiciable”—that is, IRCC claimed that an officer’s decision to return an application for incompleteness did not meet the legal criteria necessary to be subject to review by the court, and therefore should not be subject to judicial review.

In his judgement on the case, Battista ruled that the decision to return the application as incomplete was, in fact, justiciable, and further, that the officer's decision to return the application as incomplete was unreasonable.

Battista set aside the return of the application for incompleteness, and ordered that the application be sent back to IRCC for processing by a different officer.

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IRCC had claimed that the decision to return an application for incompleteness was not justiciable because it did not qualify as a “matter” as defined in section 18.1 of the Federal Courts Act, which sets out which decisions can be subject to judicial review, because the return of an application does not affect an applicant's rights or directly affect the applicant prejudicially.

Contra IRCC’s defence, Battista ruled that the applicant’s rights had indeed been infringed upon in this case, as their receipt of an invitation to apply under the authority of the Immigration and Refugee Protection Act had conferred upon them the right to submit an application for permanent residence through family sponsorship, and the officer’s decision to return their application as incomplete had affected this right, and prejudicially deprived them of the ability to pursue permanent residence through parental sponsorship.

Battista noted that in the context of Canada's current immigration regime—under which the intake of immigration applications is often gated through compliance with Ministerial Instructions—a ruling of non-justiciability in such cases would risk “the authorization of fully unscrutinized executive action . . . incompatible with the rule of law,” and that in requesting such matters be considered non-justiciable IRCC had effectively asked the Court to “turn its eyes away from unreasonableness in public administration,” which would amount to “an abdication of the Court’s fundamental responsibility on judicial review.”

Having determined that the decision to return the application as incomplete was, in fact, justiciable, Battista then reviewed the decision by the officer to return the application as incomplete.

Battista found that the decision to return the application as incomplete was unreasonable. The officer had returned the application as incomplete on account of a one-year gap in the attached CV.

But the requirement of there being no chronological gaps in the CV is nowhere listed in the official requirements for a complete application for sponsorship under the PGP.

The fact that the officer had sent the applicants a procedural fairness letter (PFL) requesting a gapless CV had no bearing on how the completeness of the application ought to have been assessed, according to Battista, as a procedural fairness letter “is not an instrument legally authorized to define a complete application.”

Ultimately, the officer in this case had erred in their assessment of the requirements of a complete application, ruled Battista, so the decision to return the application as incomplete was unreasonable.

Given that the officer's initial decision to return the application as incomplete had been unreasonable, Battista found it unnecessary to assess IRCC's refusal of the reconsideration request.

Battista also noted that because the applicants had indeed failed to submit the requested gapless CV in response to the PFL, the officer in this case could have refused their application for non-compliance.

He noted as well that a return for incompleteness on the basis of chronological gaps would have been acceptable had gaps appeared in the "Schedule A: Background Declaration Form" portion of the application, for the document checklist specifies that this portion of the application must be gapless, in contrast to the instructions for CVs.

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