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How to Request an ATIP After a Refusal

atip refusals Feb 16, 2022

An ATIP request is a request for information under the Access to Information Act or the Privacy Act and the acronym stands for “Access to Information and Privacy”. The Privacy Act specifically governs access to personal information. These requests allow someone to access information and records pertaining to the actions of the federal government and its agencies and organizations. ATIP Requests are used only for accessing information from these places — if you want to request information from your city or province, that is not part of an ATIP request.

If you are applying to change your visa status in Canada or have been refused, you may need to make an ATIP request to receive your immigration file records from the federal government — we will discuss how to do this and why you may need to do this more in the post. We will talk today about why an ATIP request can be important to immigration applications and appeals; who can apply for an ATIP request; and how to make an ATIP request. We will also look at the changes that are happening with ATIP requests and the IRCC in the next three years.

ATIP Requests & Canadian Immigration

ATIP requests are used for all areas of government, but they are used the most to request information pertaining to visa and refugee status applications from the IRCC. This is because you may need additional information from the IRCC and CBSA  in order to appeal a decision made by the IRCC to the Immigration Appeal Division or the Refugee Appeal Division. The refusal letter that the IRCC sends you about your application only provides basic information on why your visa application or refugee status claim was refused. You will likely need additional information in order to appeal the immigration officer’s decision. An access to information and privacy request will include all of the records and data that the government has on your individual case within the span of dates that you request. This is very important for being able to appeal your visa or refugee status decision.

You can look at a sample refusal letter here. You will see that it only contains simple information as to why your application for visa or refugee status was rejected. You, or your representing party (a lawyer, registered immigration consultant, or paralegal), will likely require additional information in order to appeal your case. While the minister must provide a record of the decision before your hearing, it is likely that your legal representation will still need all of the information possible. Please note that you (or your representative) only need to make an ATIP request if you are appealing a decision made by an immigration officer. If you require documentation of your travel history in order to apply for citizenship or retain permanent resident status you may do so by requesting your travel history report from the CBSA.

Who Can Apply or Make an ATIP Request?

As it stands right now, only people who hold Canadian citizenship or permanent resident status can make an ATIP request from either inside or outside Canada. And, any person or business inside Canada can make a request. This limitation is laid out in the Privacy Act.  As a result, in order to make an ATIP request if you are not a citizen or permanent resident of Canada and you are outside of the country, you must do so through a representative — either a person or a business entity. This is particularly important for immigration, where people in the process of applying for refugee status, temporary visas, and permanent residence, all of whom are not citizens or permanent residents may need to make an ATIP request. Because under the Privacy Act, these individuals cannot do this independently, they must go through an immigration consultant, a lawyer, or a paralegal within Canada or who at least holds Canadian citizenship or permanent residence status themselves to make a request, if they are outside Canada. This creates significant access to justice issues as not everyone can afford legal representation. In addition, Canada’s limitations in this regard are no longer in line with international law as it pertains to privacy and information.

This lack of access for visa applicants is made more of a problem due to the sheer volume of information requests made to the IRCC. A recent report submitted to parliament from Caroline Maynard, the Information Commissioner of Canada, titled Systemic Investigation of Immigration, Refugees and Citizenship Canada discussed issues with IRCC Canada including access to information for appeals and the exclusion of foreign nationals abroad from being able to make ATIP requests.

According to the report, between 2019-2020, the IRCC has received a total of 116,928 ATIP requests, with 98.9% of the requests related to immigration case files. All other government institutions combined received 39,294 requests in that same period, meaning that the IRCC receives ATIP requests at roughly three times the rate of the rest of the Canadian government and its organizations. Because of this administrative load, there are also significant delays in the IRCC being able to fulfill those requests. This has resulted in the largest number of complaints to the Office of the Information Commissioner about the IRCC — 4,298 in 2019/2020. The report states a need for a modernization of the digital platform used for requesting records from the IRCC (estimated to be completed in 2023-2024), additional staff to complete ATIP requests, with additional and more detailed information in the immigration refusal letters in order to reduce the need for immigration lawyers and professionals, as well as their clients to make ATIP requests.

While there are the above-outlined issues with access to information from the IRCC, the scope of ATIP requests is about to expand significantly. As noted above, at present, the Privacy Act limits who can make an ATIP request to citizens, permanent residents, and individuals or entities inside of Canada. In mid-July 2021, parliament passed the Privacy Act Extension Order, which expanded who can access their personal documents held by the government of Canada to foreign nationals abroad. This is more in line with other country’s approach to personal data and records. The United Kingdom and other commonwealth nations allow foreign nationals abroad to access their personal information as does the European Union through their General Data Protection Regulation.

The Canadian Gazette, discussing this law states that “universal access to personal information, regardless of an individual’s geographical location, is the domestic and international norm.” This change to the Privacy Act will come into force in July 2022. This means that individuals applying for visas from outside of Canada will be able to request information from the IRCC if their visa application is refused without having to retain a legal representative. While there is a risk of these additional requests for information from foreign nationals outside of Canada will further overwhelm the IRCC, hopefully by 2023-2024, a modernized web system coupled with the changed privacy act will mean individuals can easily access their records regardless of whether they are foreign nationals abroad, permanent residents, or Canadian citizens.

How Do You Make a Request?

ATIP requests can happen in two ways: either online or by mail. If making the request by mail then the person or entity making the request must send one of the following: IRCC’s Access to Information and Personal Request Form, Treasury Board Secretariat’s Access to Information Request Form, or a letter indicating that the request is made in accordance with the access to information act. They must also include a cheque for $5.00 payable to the Receiver General for Canada. This all should be mailed to the Access to Information and Privacy Division for the IRCC, the mailing address is available on the IRCC ATIP website.

It is also possible to make an ATIP request to the IRCC online. To do so, you need to include proof of Canadian Citizenship or Permanent Resident status. Photocopies or scans of these documents are acceptable. If an agent is making a request for you then you also need to include IRCC form Consent for an Access to Information and Personal Information, allowing the agent or representative to request for you, in your place. The online tool for making an ATIP request requires you to answer numerous questions, upload the documents discussed above, and pay the $5.00 fee for the request.

The Government must respond to your ATIP request within 30 days from the request. This allows time for you to review the file and resubmit, if applicable. Although this is the general timeframe, there could be delays due to large numbers of requests and because of COVID-19.

Final Thoughts

We looked in-depth at ATIP requests, including a discussion of why they are important and relevant to immigration applications and appeals, who can make ATIP requests, and finally how to make those requests. There are, however, problems with the existing ATIP request system. These include but are not limited to somewhat antiquated rules prohibiting foreign nationals from accessing their information and difficulty faced by the IRCC dealing with the volume of requests for information.

As we discussed, the scope of the privacy act is due to expand significantly in July of 2022, allowing all foreign nationals abroad to make requests for personal information and data to the federal government. This is important because it will allow people to access information to appeal visa and refugee status decisions made by officers of the IRCC without needing to retain additional legal representation to make the ATIP requests for them. This is also significant because it brings Canada’s privacy and information laws into line with other nations in the Commonwealth and the international community at large.

This expanded group of people able to make ATIP requests risks putting additional strain on the already very backlogged IRCC Information and Privacy Request System. But a recent parliamentary report from the Information Commissioner of Canada called for additional and resources put towards clearing this backlog as well as modernizing the ATIP system for the IRCC.

We can hope that there will be a smoother and easier way to make ATIP requests in the near future through a more robust online system. This, coupled with additional information included in refusal letters from the IRCC should make appealing immigration status decisions an easier, streamlined, accessible, and more efficient process.

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