Express Entry refusals have become more frequent because of Bill C-12, which expanded the discretionary powers of IRCC immigration officers, letting them review documents and decisions at any stage of the process — including at the border.
In short
- An asylum claim filed more than a year after entering Canada is not heard by the Immigration and Refugee Board.
- CBSA officers can reopen and cancel an already-issued visa right at the border if they suspect an inconsistency.
- Before going to court, an applicant must complete administrative review, which has no fixed timeline.
- By default, after a refusal it’s recommended to reapply rather than go to court — it’s cheaper and faster.
- Getting permanent residence sometimes takes two or three invitations to apply in a row.
What Bill C-12 Is and Why It Was Passed
Bill C-12 was passed to ease pressure on Canada’s asylum system: applicants who arrived on a study or work visa and chose not to leave once it expired were filing asylum claims in growing numbers. Under the UN Refugee Convention, such an applicant cannot be deported before their case is heard — and the backlog this created slowed the whole system down, hitting hardest those who genuinely needed protection.
The bill introduces a time-based test: if an asylum claim is filed more than a year after the applicant’s first entry into Canada (after June 24, 2020), it is not referred to the Immigration and Refugee Board — regardless of whether the applicant left the country and came back in between. Anyone who falls into this category is deemed to have made an ineligible claim and is moved to a separate review process, different from the one applied to claimants with a shorter history in the country.
On paper, this solved the asylum backlog problem. But behind that first goal sits a second, less visible one: the bill also expands the powers of IRCC immigration officers — not only at the border and in airports, but within in-country procedures as well.
If an asylum claim is filed more than a year after first entering Canada, the case is not referred to the Immigration and Refugee Board, and the applicant is deemed to have made an ineligible claim.
What New Powers IRCC Officers Received
Bill C-12 expands the powers of IRCC officers in immigration matters — this is the part of the law discussed least, even though it’s the one driving the rise in refusals. The expanded authority applies not only at land border crossings but also at international airports.
The key change is a broader right to cancel, suspend, or amend documents issued under the Immigration and Refugee Protection Act (IRPA), both while an application is still being processed and after a decision has already been made. These decisions are made under a process set out by Governor in Council directives, rather than at the sole discretion of an individual officer at the moment of inspection.
The bill gave IRCC officers the right to cancel, suspend, or amend already-issued documents — not only at the border but within the country too, under Governor in Council rules.
Can Border Officers Reopen a Visa That Was Already Issued
Yes: Canada Border Services Agency (CBSA) officers can reopen an already-issued visa right at the port of entry, even if the decision to grant it was made earlier. The trigger is suspicion arising during the verbal interview at the border — an inconsistency in the answers, in verbal cues, or in the circumstances of the trip, which the officer flags based on their own training for such checks.
Canada Border Services Agency (CBSA) officers can reopen an already-issued visa right at the port of entry, even if the decision to grant it was made earlier
Formally, this is an extension of the same discretionary power to cancel a document when there’s doubt about a case — the difference is that at the border, it’s applied after the visa decision has already been made.
Why Litigation Over Express Entry Cases Is Increasing
According to practitioners, the number of judicial proceedings in immigration cases has grown sharply in recent years. Part of that growth is linked to asylum procedures rather than economic immigration — there’s no precise breakdown of the numbers. But cases within economic immigration streams are also increasing, and the reason is that applicants were not given fair procedural treatment of their case.
Procedural fairness is the applicant’s right to have a decision made under clear rules, with their arguments taken into account and without arbitrary grounds. When an officer refuses or reopens a decision without respecting that right, the applicant has one path left to challenge it — filing for judicial review in court. It’s the rise in these applications that is pushing up the overall number of Express Entry court proceedings.
What to Do After a Refusal: Reapply or Go to Court
When an economic immigration decision feels unfair, the default recommended strategy is to reapply, not to go to court. Litigation is treated as an exception, not the primary way to challenge a refusal.
If a case does end up in court, handling it without a lawyer is strongly discouraged — at that stage, legal representation is essentially necessary. A consultant handling the file should either recommend the client find a lawyer or clearly tell them to do so themselves.
The reason reapplying tends to beat going to court isn’t only legal, it’s practical too. Litigation costs money for legal fees and takes time, and the timeline for the case itself is impossible to predict — it can stretch on for months. Reapplying with a more compelling application is usually cheaper and faster.
One caveat matters here: financial resources don’t decide everything in immigration cases — it’s a system where all parties are interdependent, and trying to “buy” an outcome doesn’t guarantee results.
financial resources don’t decide everything in immigration cases — it’s a system where all parties are interdependent, and trying to “buy” an outcome doesn’t guarantee results
There’s an exception to this rule: if an applicant has no other path left — for example, if reapplying wouldn’t fix the underlying problem — then it’s worth seeing the court process through despite the cost. In every other case, the recommendation is the same: try again. In practice, getting permanent residence sometimes takes two or even three invitations to apply in a row.
After an economic immigration refusal, the default move is to reapply, not go to court: litigation is more expensive, slower, and has an unpredictable timeline.
Administrative Review Before Court: A Mandatory Step
A negative decision is usually preceded by a request for administrative review — a step the applicant must go through before turning to the courts. The logic is simple: before challenging a refusal in court, the immigration service must be given a chance to reconsider its own decision.
By design, the review should not be conducted by the same officer who made the original decision — a different officer is supposed to reassess the case. In practice, there’s no way to confirm this rule is always followed: applicants have no tool to check exactly who is reviewing their file.
Applying for judicial review in court is only possible after the applicant has received an official refusal — that is, after the administrative review has already been completed and did not change the outcome. Judicial review and administrative review are different instances: the first is handled within the immigration system, the second takes the dispute into the court system with a lawyer involved.
The main problem with the review step is unpredictable timing. There’s no way to know in advance whether it will take 2 months, 3, 6, or longer — there is no fixed processing time. It’s this uncertainty over timing, not just over outcome, that often becomes the deciding factor in favor of reapplying rather than waiting for the review.
Challenging a Refusal: From Decision to Court
Before going to court, an applicant must first complete administrative review.
- Official refusal is received
- Administrative review is requested2–6+ monthsTimeline cannot be predicted in advance
- Review does not change the decisionIdeally handled by a different officer
- Judicial review is filed in courtOnly possible once review is completed
Administrative review before court is mandatory, but has no fixed timeline — it can take anywhere from 2 months to half a year or more, which often makes reapplying a better bet than waiting.
Administrative Review vs. Judicial Review
| Criterion | Administrative Review | Judicial Review |
|---|---|---|
| Who reviews the case | A different immigration officer | A court, with a lawyer involved |
| Is it mandatory | Required step before going to court | Only possible after review is completed |
| Processing time | No fixed timeline: 2 months or longer | Unpredictable, can stretch over months |
| Where it happens | Within the immigration system | In the court system |
Does Officer Discretion Mean the Rules Are Made Up as They Go
Bill C-12 gave the immigration agency broad discretionary powers, but that doesn’t mean the rules of the game are set unilaterally by whichever officer handles the case. Discretion is bounded by the principle of system integrity: it requires the same thing that underpins any fair democratic institution — rules must be known in advance, not formulated after the fact to fit a particular decision.
This isn’t an abstraction, it’s a working principle: both sides agree in advance on exactly what the applicant needs to prove and with which documents. If, after that, an officer refuses with a vague statement like “I am not satisfied by the documents submitted” — without specifying what exactly is missing — predictability has been broken retroactively.
I am not satisfied by the documents submitted
A telling case: one applicant was refused for missing CNPS documents, while the very same type of documents from another applicant were reviewed by a different officer who, also not convinced the work experience was confirmed, clearly stated what was missing and invited the applicant to complete the package. One officer gave usable feedback; the other gave a refusal with no explanation an applicant could act on to fix anything.
This inconsistency in how different officers treat the same documents is a source of the rise in litigation described above. It’s exactly why the court system builds precedents: they’re meant to even out decision-making practice, making it more predictable and consistent rather than dependent on which specific officer happens to handle a file.
Frequently asked questions
Can an IRCC officer’s decision to cancel a document be challenged directly in court, skipping review?
No: applying for judicial review is only possible after receiving an official refusal — that is, after administrative review has already taken place and did not change the decision. Skipping this step and going straight to court is not an option.
Is it possible to know in advance which officer will conduct the administrative review?
No: applicants have no way to check exactly who is reviewing their file. All that’s known is that, by rule, the review shouldn’t be done by the same officer who made the original decision — but confirming this rule is actually followed isn’t possible in practice.
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