The role of the delegated decision maker involves examining the application to see if the case warrants an exemption from the inadmissibility. It is worth highlighting that the forwarding office bears the responsibility for:
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The file
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The communication with the client and,
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The finalisation of the application
The Guidelines for A36 (1) and A38 Cases
The officers would need to:
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Step 1 – Receive the Humanitarian and Compassionate (H&C) application package from the officer responsible
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Step 2 – Determine whether the file is at Stage 1 or Stage 2
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Situations could arise where the officers find that the authorities have not yet made a Stage 1 decision
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In this scenario, the officers would need to assess whether sufficient Humanitarian and Compassionate (H&C) grounds exist that warrant a positive Stage 1 decision
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If ample Humanitarian and Compassionate (H&C) considerations exist that warrant a positive Stage 1 decision, the officers would need to assess whether sufficient Humanitarian and Compassionate (H&C) grounds exist for justifying the granting of the exemption
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Situations could arise where the authorities make a Stage 1 decision and then subsequently discover an inadmissibility at Stage 2
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In these situations, the officers would need to assess the exemption for the inadmissibility revealed at Stage 2
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Step 3 – Review all the material the applicant has submitted, including the Humanitarian and Compassionate (H&C) factors as well as any other relevant factors
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Step 4 – Make a decision after weighing all the information submitted
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In some cases, the officers might identify more than one inadmissibility
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In this scenario, they would need to ascertain whether the waiver (if granted) applies to each or all of the inadmissibilities
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This would typically be the case in instances where the client is inadmissible for both A38 and A39
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Step 5 – Prepare the reasons for the decision, while taking into account all the relevant information given in the file
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Step 6 – Advise the forwarding office about the decision the authorities have taken
The Guidelines for A34, A35 or A37 Cases – When the Authorities Received the Applications Prior to June 19, 2013
The officers would need to:
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Step 1 – Receive the Humanitarian and Compassionate (H&C) application package from the officer responsible [refer to Appendix A]
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Step 2 – Review all the material the applicant has submitted
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The Director would need to assess any risk factors that the applicant has cited if the non-risk factors do not justify providing an exemption
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Step 3 – Make the appropriate decision or recommendation i.e.
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Make a negative decision if sufficient Humanitarian and Compassionate (H&C) grounds do not exist that justify an exemption or,
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Consult with National Security Division of the Canada Border Services Agency (CBSA) if Humanitarian and Compassionate (H&C) factors merit a consideration
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In this scenario, the officers would need to prepare a case summary
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The case summary would typically include the outcome of consultation with the Canada Border Services Agency (CBSA)
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It would also include the briefing note that requests a Ministerial decision
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It is worth mentioning that exceptional circumstances could warrant the reconsideration of the negative decision.
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Humanitarian and compassionate (H&C) Stage 1 approvals
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A Stage 1 approval is an interim decision as the applicant usually does not receive the confirmation of permanent residence at this stage
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In some cases, inadmissibility or other significant factors could come to light following a Stage 1 approval
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In this scenario, the officers would need to take this information into account and if appropriate, they would need to revisit the Stage1 decision
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In case the officers decided to revisit the Stage 1 approval, they would need to provide the applicant with an opportunity for providing submissions prior to making the decision of reversing the positive Stage 1 decision
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In some situations, it might be possible to resolve the application at Stage 2 without returning to the original decision maker
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In cases where this is both reasonable and practicable, the officers would need to resolve the application at Stage 2 without returning to the original decision maker
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The guidelines for reconsideration requests after refusal at Stages 1 or 2
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It is worth highlighting that the legal doctrine of functus officio does not automatically bar reconsideration of final humanitarian and compassionate (H&C) decisions i.e. MCI v Kurukkal, 2010 FCA 230
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As such, the decision maker has the ability to exercise discretion for reconsidering or refusing to reconsider the applicant’s request for reopening a previous decision
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However, officers would need to consider reconsidering previous decisions only in exceptional cases
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As such, an applicant’s dissatisfaction or disagreement with the decision would not, by itself, qualify as being an exceptional case
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Officers would need to return reconsideration requests to the original decision maker whenever possible
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In some cases, a local office of Citizenship and Immigration Canada (CIC) might have determined certain applications
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In this scenario, the officers would need to send the request to the Backlog Reduction Office in Vancouver (BRO-V) for assignment
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Reviewing a request for reconsideration is a two-step process
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As such, officers would need to:
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Decide whether to re-open the case and consider the new evidence presented, even if the case is under litigation at the Federal Court and,
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Review the new submissions and the original file, before deciding to change or retain the original decision (after deciding to reconsider)
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The factors to consider when deciding whether to reconsider
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Based on the information submitted, the officers would first need to determine whether the case warrants a reconsideration of a previous humanitarian and compassionate (H&C) decision
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The applicant bears the responsibility for satisfying the officer that the case warrants a reconsideration
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Officers would need to consider all relevant factors and circumstances for determining whether the case merits reconsideration
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Some factors that the officers could consider relevant for warranting a reconsideration include:
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Situations where the decision maker failed to comply with the principles of natural justice or procedural fairness when making the decision
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Situations where the applicant has requested correction of a clerical or other error e.g. an officer who did not have the delegated authority made the decision
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In the event of the applicant submitting new evidence, the officers would need to consider whether the new evidence is based on new facts
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New facts would typically denote facts that arose after the authorities made the original decision and communicated it to the applicant
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In addition, the officers would need to consider whether the new evidence is material and reliable
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Officers would also need to decide whether the authorities would consider the new evidence more appropriately in the context of a new application
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Situations where the applicant presents additional evidence that was available at the time of the original decision
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In this scenario, the officers would need to consider why the applicant did not submit the evidence at the time of the original application
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In addition, they would need to determine whether that evidence is material and reliable
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The passage of time between the date of the original decision and the date of the reconsideration
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The existence of any concerns regarding fraud or misrepresentation relating to a material fact in the original decision or with the new submissions and,
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In some situations, the case might receive a negative decision from the Federal Court after a judicial review
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In this scenario, the officers would need to refuse to reopen the case, if there are no extenuating factors that warrant reconsideration
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After deciding whether or not to reconsider
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If the officers decide to reconsider, they would need to:
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Reopen the first humanitarian and compassionate (H&C) decision
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Request information from the applicant i.e. medical, procedural fairness letter etc. and,
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Make a new decision and send the approval or refusal letter Stage 1
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If the officers decide not to reconsider, they would need to inform the applicant
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They would need to refer to the original refusal for explaining the refusal
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This is because the officers would have already informed the applicant of the reasons for refusing their application the first time round
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Thereafter, the officers would need to record the reasons for granting or refusing the reopening request based on the submissions reviewed
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For instance, a decision could typically reflect the following reasons:
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The passage of time
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New information not previously submitted or,
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A procedural fairness error
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Officers would need to consider whether the case warrants a detailed analysis on a case-by-case basis based on factors such as:
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Whether the officers decided to reopen the decision
- The kind of submissions
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