A denied immigration application can be a devastating blow, especially when significant time, effort, and resources have been invested in building a new life in Canada. However, a refusal does not necessarily mean the end of the road. Applicants may still have an opportunity to seek reconsideration by filing a Motion to Reopen or Motion to Reconsider their case, depending on the legal and procedural context. These remedies allow applicants to address errors, provide new evidence, or clarify misunderstandings that may have influenced the negative decision.
This article explores the details of motions to reopen and reconsider in the Canadian immigration context, offering practical insights into how they work, who can file them, and under what circumstances they can lead to a successful reversal of a previous decision.
Understanding the Difference: Motion to Reopen vs. Motion to Reconsider
While they sound similar, these motions serve different purposes in immigration law.
Motion to Reopen
A Motion to Reopen is used to introduce new facts or evidence that were not available at the time the original decision was made. The motion must demonstrate that the new evidence is material and could affect the outcome of the case.
Examples:
- A medical report showing new health issues
- Recently acquired legal custody documentation
- New job offer or financial proof
Motion to Reconsider
A Motion to Reconsider challenges the legal or factual basis of the original decision. It argues that the decision-maker erred in law or fact when rendering the decision.
Examples:
- Misinterpretation of law (e.g., incorrect application of IRPA)
- Failure to consider submitted evidence
- Procedural fairness was not provided
When Can You File a Motion?
Eligible Applicants
Only the applicant or their authorized legal representative can file the motion. If the applicant is outside Canada, their representative must be legally allowed to practice immigration law in Canada.
Applicable Situations
- Refusal of permanent or temporary residence
- Removal orders
- Denial of humanitarian and compassionate (H&C) applications
- Denied refugee protection decisions
Timeline to File a Motion
There is no standard deadline across all case types, but timeliness is critical. For instance:
- The Immigration Appeal Division (IAD) typically requires motions to be submitted within 30 days of the refusal.
- For Federal Court judicial reviews, a motion to reconsider must usually be filed within 15 days (inside Canada) or 60 days (outside Canada).
Always consult the original refusal letter and applicable tribunal or court guidelines to confirm the appropriate filing window.
How to Draft an Effective Motion
Step 1: Obtain the Decision Record
Before filing a motion, it’s essential to understand the rationale for the refusal. Request GCMS notes or court records to access:
- Officer comments
- Assessment criteria
- Documentation reviewed
Step 2: Identify the Error or New Evidence
Clearly specify what aspect of the original decision you are contesting:
- Was relevant evidence overlooked?
- Was there a legal misapplication?
- Has new, material information come to light?
Step 3: Structure the Motion
A motion must be written professionally, with these components:
- Applicant Information
- Background and Case History
- Grounds for Reopening or Reconsideration
- Supporting Evidence (affidavits, reports, etc.)
- Legal Basis or Precedents
- Relief Sought (what decision change is requested)
- Signature and Certification
Step 4: Attach Evidence
Quality matters more than quantity. Ensure that all documents are:
- Authenticated or notarized
- Properly labeled and translated (if applicable)
- Chronologically ordered
Step 5: Submit Through the Correct Channel
Depending on the forum of the original decision:
- IRCC decisions: Use Web Form or respond to previous correspondence
- Immigration Appeal Division: Submit via the IAD registry
- Federal Court: File through a licensed lawyer, using e-filing systems
Legal Grounds Often Cited
Misapplication of Law
A motion may assert that the decision-maker applied the wrong section of IRPA or ignored prevailing legal principles.
Procedural Fairness
This involves a failure to notify the applicant of concerns or denying the opportunity to respond before refusal.
Insufficient Consideration
The officer may have failed to consider relevant facts, such as new employment, humanitarian factors, or the best interests of a child.
Professional Help: When and Why to Hire a Lawyer
Filing these motions can be legally complex. Hiring a licensed immigration lawyer can:
- Improve your legal arguments
- Ensure submission meets procedural standards
- Avoid critical omissions
Search verified professionals via the Canadian Bar Association or provincial law societies.
Common Mistakes to Avoid
- Missing filing deadlines
- Submitting weak or irrelevant evidence
- Failing to address officer’s core concerns
- Using emotional appeals without factual support
- Neglecting to follow formal submission formats
Real-Life Case Examples
Example 1: H&C Denial Overturned
A woman applied for permanent residence on humanitarian grounds, which was initially denied due to insufficient establishment in Canada. Her motion to reopen included:
- Updated letters of support
- New full-time employment contract
- Volunteering records
The new evidence persuaded the officer to reverse the original decision.
Example 2: Study Permit Reconsideration
An international student had their visa denied based on insufficient financial proof. A lawyer helped draft a motion with:
- Updated bank statements
- Sponsor affidavits
- Tuition payment confirmations
The decision was reversed within two months.
Best Practices to Increase Success
- Act quickly after receiving a refusal
- Use a clear table of contents in your motion
- Label exhibits properly (Exhibit A, B, etc.)
- Cite relevant immigration law or Federal Court precedents
- If available, include a legal opinion letter from a lawyer
Understanding Federal Court Judicial Review
A motion to reconsider is different from a judicial review at the Federal Court. While a motion is a direct appeal to the same body or officer, a judicial review asks the court to determine whether the original decision was unreasonable or procedurally unfair.
Only a lawyer licensed in a Canadian province can file a judicial review on your behalf.
Appeal vs. Motion vs. Judicial Review
| Process | Purpose | Forum |
|---|---|---|
| Appeal | Full re-hearing of case | IAD or RAD |
| Motion to Reopen | New facts introduced | Same decision-maker |
| Motion to Reconsider | Legal/factual error in decision | Same decision-maker |
| Judicial Review | Reasonableness/fairness review | Federal Court |
Additional Tools and Resources
Conclusion
A motion to reopen or reconsider is a powerful legal tool for individuals facing immigration refusals in Canada. Understanding the nuances of these motions along with the supporting evidence, legal reasoning, and deadlines involved can make a critical difference in the outcome of a case.
While self-representation is permitted, the complexity of immigration law often requires professional guidance. Those who approach the process with preparation, factual accuracy, and strategic insight greatly increase their chances of a favorable result.
Always read the refusal letter carefully, act swiftly, and consult legal professionals to ensure your motion is persuasive, comprehensive, and aligned with Canadian immigration laws.
