When Procedural Fairness Requires a Fairness Letter

One of the most complicated topics in immigration law is determining when procedural fairness will require an immigration officer who is assessing an application to seek clarification in the form of a fairness letter or interview.

As the Supreme Court of Canada noted in Baker v. Canada (Minister of Citizenship and Immigration) the the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. When a visa officer does not rely on third party extrinsic evidence to make a decision it can often appear unclear when exactly it is necessary for an officer to afford an applicant an interview or a right to respond to the officer’s concerns.  However, there will be a right  to respond under certain circumstances.

Requirement to Provide Complete Applications

Visa officers do not have any legal responsibility to advise applicants of incomplete or inadequate applications.

In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, for example, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. A visa officer determined that the application was deficient as it failed to include required information regarding the applicant’s salary and benefits. The applicant argued that the Canadian embassy should have told the applicant that this information was missing, and given her a chance to provide what was missing. However, the Court noted that there is no duty to advise an applicant of a deficient application. As Justice Mandamin noted, the process is clear. An applicant must provide a complete application.

As such, and to reiterate, visa officers do not have the obligation to notify applicants of inadequacies in their applications nor in the supporting documents. They do not have to seek clarification or additional documentation, nor provide an applicant with an opportunity to address concerns, when the material provided in support of an application is unclear, incomplete or insufficient to show that someone meets legislative program requirements.

Credibility Concerns

A duty may exist, however, to provide an applicant with the opportunity to respond to a visa officer’s concerns when the officer is concerned with the credibility, the veracity, or the authenticity of the documentation provided by an applicant as opposed to the sufficiency of the evidence provided.

In Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759,  for example, an application was complete.  However, the visa officer rejected the application because he did not believe the genuineness of one of the applicant’s answers on the application. The Court acknowledged that the duty of procedural fairness in the decisions of visa officers [is] at the low end of the spectrum. However, Justice Mandamin, the same Justice as above, also noted that where the application is adequate, but the officer nevertheless entertains a doubt on the evidence, there remains a duty to clarify the information. The judge thus allowed the judicial review.

Grewal v. Canada (Citizenship and Immigration), 2011 FC 167 provides another example of this principle. There, an application was rejected because of a poor IELTs score.  In brief, the applicant had arranged employment in Canada as a Retail Trade Manager, but the visa officer determined that she would be unable to perform the required duties  of the arranged employment because of her poor IELTS marks. The visa officer refused the application without providing the applicant with an opportunity to respond to this concern.

Justice Noel noted numerous factors that resulted in the officer having a duty to seek additional information from the applicant, including 1) that immigration guidelines specified that additional information would be required for doubts over Arranged Employment Offers, 2) that the language proficiency concern derailed the individual’s entire claim for permanent residence, and 3) that the applicant’s consultant had thoroughly explained the reason for the poor test and had stated that another would be forthcoming.  Accordingly, Justice Noel determined that procedural fairness dictated that a fairness letter or interview be provided.

Singh v. Canada, 2010 FC 1306 is a final example.  There, an officer rejected a work permit application because the only documents which the applicant provided to support her claimed employment experience as a Ragi were reference letters.  The officer stated that she saw “many such letters which turn out to be fictitious”, and that she required “more than letters, for instance, newspaper cut outs, photos of them practicing or letters of reference, to properly corroborate claims of training, knowledge, and experience.”  The Federal Court, however, overturned this decision, noting that the applicant was not put on notice that the officer was concerned with the veracity of letters, and did not request further documentation.

Conclusions

In 2011, Justice O’Keefe in Kaur v. Canada, 2011 FC 219 provided  an excellent articulation of the current jurisprudence, and what should be the starting basis for any analysis of whether procedural fairness required the providing of the applicant with an opportunity to respond to a given concern.  The Court stated that:

An officer is not under a duty to inform the applicant about any concerns regarding the application which arise directly from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 at paragraphs 23 and 24).

The onus was on the applicant to satisfy the officer of all parts of her application and the officer was under no obligation to ask for additional information where the applicant’s material was insufficient (see Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262 (F.C.T.D.), [1999] F.C.J. No. 1198 (QL) at paragraph 6).

However, the officer was obligated to inform the applicant of any concerns related to the veracity of documents that formed part of the application and the officer was required to make further inquires in such a situation (see Hassani above, at paragraph 24).

The message from the courts seems clear. Visa applicants have one shot, and they should ensure that the effort that they put forward is their best, because if they do, procedural fairness will require that immigration officers provide them with the opportunity to address concerns.

If they don’t put their best foot forward, however, then their applications will be rejected outright.


Secret Evidence Used Against Me? (On Extrinsic Evidence) [Updated]

Where immigration officers have extrinsic evidence particular to an applicant, and that applicant is unaware that the immigration officer has that evidence, then procedural fairness requires that immigration officers disclose this evidence to the applicant.
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Substituted Evaluations for Federal Skilled Worker Applicants [Updated]

There is a myth amongst potential Federal Skilled Worker Program applicants that their application is guaranteed if they can get 67 points. This is not true for several reasons, including the possible use of substituted evaluations.
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Court Certifies Numerous Questions in Dismissal of Skilled Worker Class Action [Updated – Federal Court of Appeal Dismisses Appeal]

In Tabingo c. Canada (Citizenship and Immigration), 2013 FC 377, the Federal Court (the “Court“) certified three questions when it dismissed the class action lawsuit launched by people whose permanent residence applications were terminated by Bill C-38, the Jobs Growth and Long-term Prosperity Act (“Bill C-38“).  Bill C-38 introduced a new s. 87.4(1) (“Section 87.4(1)“)to the Immigration and Refugee Protection Act, SC 2001, c 27 (“IRPA“) ,which terminated Federal Skilled Worker Class applications made before February 27, 2008 unless an officer had made a selection decision before March 29, 2012.

Section 87.4(1) reads:

87.4 (1) An application by a foreign national for a permanent resident visa as a member of the prescribed class of federal skilled workers that was made before February 27, 2008 is terminated if, before March 29, 2012, it has not been established by an officer, in accordance with the regulations, whether the applicant meets the selection criteria and other requirements applicable to that class.

(2) Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.

(3) The fact that an application is terminated under subsection (1) does not constitute a decision not to issue a permanent resident visa.

(4) Any fees paid to the Minister in respect of the application referred to in subsection (1) — including for the acquisition of permanent resident status — must be returned, without interest, to the person who paid them. The amounts payable may be paid out of the Consolidated Revenue Fund.

(5) No person has a right of recourse or indemnity against Her Majesty in connection with an application that is terminated under subsection (1).

The Court’s certified questions are:

  1. Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus?
  2. Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA?
  3. Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Canadian Charter of Rights and Freedoms?

Does subsection 87.4(1) of the IRPA terminate by operation of law the applications described in that subsection upon its coming into force, and if not, are the applicants entitled to mandamus?

The applicants argued that Section 87.4 did not apply retrospectively to interfere with vested rights, and that it did not operate to terminate the applications as a matter of law.  Rather, they argued that individualized adjudication must follow to determine which applications were encompassed.

In rejecting this argument, the Court reiterated that the principles of statutory interpretation are that courts will not interpret legislation in a manner that removes existing rights or entitlements unless Parliament’s intention to do so is clear.  However, when a statute is unambiguous the courts have to interpret it according to its ordinary meaning.  On the issue of Section 87.4, the Court wrote:

Here, the ordinary meaning of the provision governs.  The meaning and effect of the word “terminated” is clear.  Section 87.4, by its terms, is explicitly designed to apply retrospectively to applications dated before February 27, 2008 and to eliminate the obligation to further process pending applications.  The plain and obvious meaning of section 87.4 requires that the provision be retrospective and interfere with vested rights, regardless of any perceived unfairness.  The three presumptions relied on by the applicants are displaced by the clarity of Parliament’s intention.  Further, to interpret the section otherwise would leave it without any effect beyond refunding the application fee.

The Court further held that Section 87.4 entailed a non-discretionary application of law to verifiable and incontrovertible facts.

Does the Canadian Bill of Rights mandate notice and an opportunity to make submissions prior to termination of an application under subsection 87.4(1) of the IRPA?  

Subsection 1(a) of the Bill of Rights protects the right not to be deprived of property except by due process of law.  Subsection 2(e) guarantees a fair hearing for the determination of rights and obligations.  The applicants argued that Section 87.4(1) of IRPR breached both of these requirements.

On the latter issue, the Court determined that due process protections of the Bill of Rights do not apply to legislative enactments, and that the Bill of Rights only guarantees the fairness of proceedings before a tribunal or administrative body that determines rights and obligations.  In reaching this decision, the Court relied on the following passage from the Supreme Court of Canada’s decision in Authorson v Canada (Attorney General):

Similarly, s. 1(a) may be seen as conferring procedural protections against the deprivation of property that existed in 1960.  Certain procedural rights in this regard have long been recognized.  In Lapointe v. Association de Bienfaisance et de Retraite de la Police de Montréal, [1906] A.C. 535, the Privy Council recognized a right to have notice of accusations made and an opportunity to make a defence where the board of directors of a pension board stripped a police officer, who had resigned, of his pension.  Where the law requires the application of discretion or judgment to specific factual situations, notice and an opportunity to contest may be required.  For example, such rights may exist where the government eliminates a veteran’s benefits because it believes he is no longer disabled, or because it believes he was never a member of the armed forces.  However, notice and an opportunity to make a defence are not required where the government legislates to completely eliminate such benefits.

The Court also found that submitting an economic immigration application did not vest any rights in an applicant, but rather was a mere chance to gain access to economic opportunities in Canada.

Is section 87.4 of the IRPA unconstitutional, being contrary to the rule of law or sections 7 and 15 the Canadian Charter of Rights and Freedoms?

After extensive obiter about whether the applicants could even claim to be entitled to Charter protection, the Court ruled that it did not matter in any event because Section 87.4(1) of IRPA did not breach the Charter.  

Regarding s. 7, the Court found that it was primarily (though not exclusively) concerned with the rights of individuals in the criminal justice context, including rights on search, seizure, detention, arrest, trial and imprisonment, as well as in the non-criminal contexts of the freedom to make fundamental personal choices, and the freedom to physical and pyschological integrity.

The Court further stated, however, that it did not extend to immigration, as the ability to immigrate, particularly as a member of an economic class, is not among the fundamental choices relating to personal autonomy which would engage s. 7 of the Charter.  To paraphrase, while immigration may have life-altering consequences, the possibility of immigrating to Canada as a successful economic applicant does not engage life or liberty interests.

Regarding s. 15, the applicants argued that Section 87.4 codified and legitimized past discrimination on the basis of national origin and country of residence.  The evidence was that approximately 92% of the terminated applications originated in Africa, the Middle East, Asia and the Pacific, while 8% of the terminated applications originated in Europe and the Americas.  However, the Court found that the fact that immigrants arrive from all over the world, that Citizenship and Immigration Canada tried to address backlogs by transferring processing, and that people from all over the world living in Canada could (then) apply to the Canadian Consulate in Buffalo, showed that there was no discrimination.

Conclusions

Considering that around 1,000,000 people were affected by the Tabingo decision, it is not surprising that the Court certified the above three questions.  The matter is now on its way to the Federal Court of Appeal.

[UPDATE – September 17, 2014] 

The FCA has dismissed the appeal. More to follow.

http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/73144/index.do


Questions & Answers – FSWP Education Points and On-Campus Work Permits (IR-04)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding Education Points under the Federal Skilled Worker Program, as well as a question about On Campus Work Permits.

Please note that what I have reproduced below should not be viewed as legal advice.  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Question – May 06, 2013

Dear Sir / Madam,

I have two questions:

1. For submissions under the Federal Skilled Worker Program, do applicants need to submit proof of completion of secondary school if their highest level of education is a bachelor’s degree (or higher)?  In other words, is documentation required for all secondary and post-secondary students, or just for the highest level of education claimed?

2. Is there a maximum number of hours that a student with a valid study permit can work ON campus?  I understand that Off-campus work permit holders can only work 20 hours and I was wondering if the same restriction applies to On-campus work.

Best regards,

Answer – May 27, 2013

1) As noted in the Federal Skilled Worker Program application guide, in order to meet the minimum education requirement, all applicants must submit proof of:

  • a completed Canadian secondary or post-secondary credential, or
  • a completed foreign educational credential and an Educational Credential Assessment (ECA) report issued by an organization designated by CIC if their educational credential was obtained outside Canada.  The ECA report must confirm the equivalency of the completed foreign educational credential to a completed Canadian secondary or post-secondary educational credential.

An applicant submitting proof of a Canadian post-secondary educational credential (or an equivalent foreign educational credential) does not need to also submit proof of completion of a secondary educational credential.

2) There is no restriction on the number of hours that a student with a valid study permit can work on campus.

However, as per section 5.21 of OP12, “to be eligible for employment on campus, the student:

  • be registered full-time at a public university, community college, CEGEP, publicly funded trade/technical school or private institution authorized by provincial statute to confer degrees; 
  • be in possession of a valid and subsisting study permit; and
  • work on campus at the institution where they are registered, whether for the institution itself or for a private business located on campus.

 


Question & Answer – FSW Arranged Employment and ICTs (IR-03)

The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding Arranged Employment under the Federal Skilled Worker Program for Intra-Company Transferees.  The Federal Skilled Worker Program allows certain individuals employed in Canada without a Labour Market Opinion to qualify for Arranged Employment.  As with any program, questions emerged regarding specific requirements, including whether intra-company transferees qualify for Arranged Employment without a Labour Market Opinion.

Please note that what I have reproduced below should not be viewed as legal advice.  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.

Question – May 28, 2013

Hello,

Could you please confirm if the intra-company work permit holders in Canada can be considered to have arranged employment under the new rules (as of May 4th 2013) and could submit a FSW application based on the fact they hold ICT work permit and have an indeterminate job offer from the same employer.

Answer – May 28, 2013

Intra-company transferees in Canada who hold a valid work permit which is exempt from the Labour Market Opinion (LMO) requirement under R204(a), are working for an employer specified on the work permit and have a qualifying offer of arranged employment from the same employer are eligible to apply under the arranged employment stream under the Federal Skilled Worker Program under the new rules which came into effect on May 4, 2013 [R82(2)(b)].

All other intra-company transferees who hold a valid work permit which is LMO-exempt under R205 would also be eligible to apply provided they had a qualifying offer of arranged employment from their prospective employer, and that employer had obtained a positive LMO [R82(2)(d)].

The Immigration and Refugee Protection Regulations are actually very clear on the above.  I presume that the representative who asked the above question knew what the answer was, but wanted Citizenship and Immigration Canada to explicitly confirm this requirement for the Federal Skilled Worker Program.

I do not understood the Government of Canada’s policy rationale for why intracompany transferees under NAFTA, the Canada-Chile FTA, the Canada-Peru FTA, and other free-trade agreements are eligible under the new Federal Skilled Worker Program for Arranged Employment without a Labour Market Opinion, while general intra-company transferees are not.  When the law first came out I thought that a possible solution would be to request that officers process general intra-company transferees under the GATS agreement.  However, the Foreign Worker Manual now instructs officers to process GATS intra-company transferees under R205(a), C12, thereby excluding them from qualifying for Arranged Employment without a Labour Market Opinion.


ATIP Results for CAPIC Presentation

I will be presenting in Vancouver tonight at the Canadian Association of Professional Immigration Consultants annual general meeting  on the recently changed Federal Skilled Worker Class and the Canadian Experience Class.  This follows up on a presentation I made on the same topic at the Canadian Bar Association annual immigration conference in Montreal.

As part of my presentation, I have made available the following ATIP result publicly available.  This ATIP contains training manuals and internal procedures used at Citizenship and Immigration Canada’s Centralized Intake Office in Sydney, Nova Scotia.  It can be viewed by clicking the link below.

ATIP CIO TRAINING MANUALS – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/compressed.PDF

I have also reposted the following copies of ATIP results which I made available for the Canadian Bar Association conference in Montreal.

ATIP 1 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP1.PDF

Contains:

  • An e-mail discussion on substituted evaluation;
  • Several e-mail discussions regarding issues with the PhD program;
  • Processing delays with the CEC;
  • Issues with the 2D barcode and GCMS;
  • Addressing problems with Indian Birth Certificates;
  • and more.

ATIP 2 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP2.PDF

Contains:

  • An e-mail discussion on working overtime to process capped applications;
  • Clarifying the use of Academic IELTS;
  • E-mails on processing reconsideration requests; and
  • Several OBs (most already public, and some not).

ATIP 3 – https://s3.amazonaws.com/cdn.stevenmeurrens.com/docs/ATIP3.PDF

Contains:

  • GCMS Shortcuts and Tips;
  • Case Studies on Removal Orders and ARC;
  • Cheat Sheet on Calculating the Start of the 5 Year Period for Rehab;
  • Training guides for misrepresentation;
  • Assessing medical specializations and professional degrees;
  • Assessing Skilled Workers (Islamabad Caseload);
  • Exercises on assessing Ministerial Instructions;
  • Federal Skilled Worker Cheat Sheet;
  • C-50 Summary;
  • Australian Police Certificates;
  • Criminality in the UK, equivalency sheets, and a whole lotta rehab stuff;
  • War Crimes (including a chart of every organization the courts have upheld as being brutal or non-brutal);

Please note that the ATIP results above are copies of official works by the Government of Canada which were obtained through Access to Information and Privacy Act Requests, and to my knowledge is not otherwise publicly available.  While I believe that most of the data is still current, I cannot be assured of this, and some programs may have changed lately.  The documents should only be used for informational purposes current as to the date that they were originally produced.  The reproduction of these documents has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.


Educational Credential Assessments (Updated May 22)

Citizenship and Immigration Canada has released the names of the designed Educational Credential Assessment agencies.

Starting on May 4, 2013, applicants to the Federal Skilled Worker Program will be required to submit an Educational Credential Assessment.  Subsection 75(2)(e) makes this a requirement even if the applicant does not wish to rely on Education points.

The four designated organizations are:

The Medical Council of Canada has been designated only for those applicants who intend to apply with “specialist physician” or “general practitioner/family physician” as their primary occupation in their Federal Skilled Worker Program application.

I have browsed the websites of each of the above agencies, and produced the table below.  Getting educational credentials assessed is going to be a very time consuming process.  Right now the World Education Services website strongly suggests that it is faster, cheaper, and less document heavy than the other two organizations.  However, I would not be surprised if competition forces the other two organizations to change, and applicants are advised to check all websites to determine which one agency would be best for them.

Factor Comparative Education Service International Credential Assessment Service of Canada Word Education Services Medical Council of Canada
Documents Required Application Form

Color photo ID showing DOB.

 

Color copy of credential and official translation.

 

Color copy of both sides of transcripts and official translation.

 

Sealed academic records mailed directly from institution to agency.

Copy of name change (if applicable).

Online application. 

Copy of each side of credential and translation.

 

Copy of both sides of transcripts and  translation.

 

Copy of abstract of thesis/dissertation and translation.

 

Copy of name change (if applicable).

 

Sealed academic record mailed directly from institution to agency.

 

Online application. 

No general documentation requirement, but country specific checklists generally include copies of credentials, letters confirming awarding of documents, and transcripts.

Copy of name change (if applicable).

Sealed academic records mailed directly from institution to agency.

Open an account with the MCC Physician Credential Repository 

Submit a Source Verification Request for their Final Medical Note

 

Certified copy of the medical diploma.

 

Translations.

Country Specific Additional Documents Yes. Yes. Yes. Not clear.
Cost Regular – 226Rush – 508.50 200 + HST 180 + HSTRush – 280-300 + HST 300+
Processing Regular – 11 weeksRush – five days after receipt of all documents 6-8 weeks Standard – Seven days upon receipt of all documents.Three day and same day processing available. 75-105 days