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An Incomplete Application and its Consequences.

A lot has been said about what is an "Incomplete Application" by the courts but it is the most common mistake people make while submitting their immigration application. The jurisprudence (case laws) has made it clear about what constitutes an "Incomplete Application" in the immigration context, but perhaps more understanding is required to avoid this mistake and its consequences which could be serious at times for the applicant and for others who are part of that application.

I will talk about the Immigration rules, regulations and jurisprudence around this topic but let me start by saying that it is obvious, no body will send an application knowing that they have some missing information or document that was required. Every applicant believes that he has done his best and fulfilled everything that was required to be done on the application. Those who have not dealt with Canadian Immigration department (IRCC) before perhaps have this notion in their head that if something is left out on the forms (by mistake) or a supporting document is missing (again, by mistake) with the application, the IRCC will call or write back for the missing information and the applicant could provide that information to the IRCC with no disruption or negative consequences. It might sound logical, but this is not the fact and it doesn't work with IRCC applications.

In the case, Prasad v Canada (Minister of Citizenship and Immigration, [1996] FCJ 453 The deciding Judge made it clear about this aspect and wrote the following "The onus rests upon an Applicant to submit a complete application containing adequate supporting documentation, and it is “not for the visa officer to wait and to offer the applicant a second, or several opportunities to satisfy the visa officer on necessary points which the applicant may have overlooked”

This happens because IRCC is governed by Immigration and Refugee Protection Act, commonly called as IRPA and its regulations known as IRPR. The section 12 of the regulations say that if anything is missing on the application that was required as per section 10 and section 11 of the regulations, the application along with all the documents submitted shall be returned to the applicant and this is what exactly IRCC is doing, following the law.

Let's take an example. You prepare a spousal sponsorship application for your spouse waiting impatiently in your home country, after months of hard work in putting the application together, such as filling different forms, attaching large no. of required supporting documents, and paying the right applicable fee. Then you send this big envelope to the IRCC and prepare yourself for the long wait to get an answer. Sadly, after about month and a half, the application package is returned for a very small reason, such as missing to put a checkmark to one of the questions on one of the forms.

Keep in mind that the consequences of the return of an incomplete application largely depends upon the type of the application and the applicants circumstances at that time and it could take a serious turn suddenly. Not only you loose valuable time and money in the process, in some cases you miss the only opportunity you had to immigrate to Canada. This is what exactly happened to an applicant in the case "Masaru Genai v. Minister of Citizenship and Immigration" cited as 2017 FCA 29 in the Federal Court of Appeal judgments.

Here is the brief summary of the case for your delebrations.

The applicant sent an application for his permanent residence under the CEC program with his credit card details for the fee. The IRCC on receiving his application tried to charge his card several times but failed. After several attempts the application was returned to the applicant because in order to accept the application a proof of payment was required. The applicant on receiving the application back sent it again but this time with a money order. However, in the meantime, there were changes in the law (IRPA) and all application were being accepted through the Express Entry system only. The IRCC refused to accept the application citing the reason that the law has changed during the time the applicant sent the application again and the applicant will have to apply through Express Entry (EE) system, which was new way of accepting applications. The applicant applied for a judicial review by the Federal Court of Canada submitting that he should be given the same preference as he had previously in the processing and since his application was returned just for the reason of fee, the IRCC should accept it under the old law. The Federal Court dismissed the appeal saying that the application was incomplete because of the missing application fee as required by section 10 of the immigration regulations and hence IRCC were well with in their right to return the application to the applicant.

I would imagine that by now, you have gathered how serious is the issue of an "Incomplete Application" which also leads us to this very important question, "Does IRCC hold any spot in the queue for an application that was sent back for missing information, so that the applicant could provide the missing information and then send the application back to the IRCC to continue the processing of his application?”.

The Federal Court of Appeal (FCA) answered the similar question emphatically in negative in the same case discussed above. The court said that an "Incomplete Application" is not even an application within the meaning of IRPA and Regulations and that there is no mechanism with IRCC to hold the space for an incomplete application, to take the same spot when it is submitted again with the missing information.

In other words if you miss the train, you are out of luck. If you read section 10 of the immigration regulations, you will find that it specifies what exactly must be there to make the application complete such as signatures on the forms, applicable fee, include all the necessary information and documents asked in support of the application. These are not very difficult to follow, but more often, an applicant misses them inadvertently. Remember that the onus is on you to send a complete application, so take your time to check again before you mail it.

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