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.


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.

What if You Created an Investor Program and No One Applied?

The following article appeared in the April edition of The Canadian Immigrant.


On Jan. 28, 2015, Citizenship and Immigration Canada (CIC) launched the replacement to the federal investor immigration program, called the immigrant investor venture capital pilot program. CIC was apparently so confident about demand for the new program that it announced that it would only accept applications to the new program for two weeks, or until a maximum of 500 applications were received, whichever came first. It soon became apparent that no one was applying to the new program, and on Feb. 13, CIC quietly announced that it was extending its two-week deadline until April 15.

The question thus has to be asked … has CIC created an immigrant investor program that no one is interested in?

Old immigrant investor program

Under the old federal investor immigration program, investor immigrants had to make a five-year $800,000 interest-free loan to the Government of Canada, have a net worth of CDN $1.6 million, and have two years of qualifying business experience. The program was first-come-first-served, and applicants were not required to possess any English or French language skills.

In 2014, the Government of Canada ended the investor immigration program and terminated all existing applications that were in processing. This resulted in roughly 65,000 individuals having their Canadian permanent residency applications cancelled.

Pilot program requirements

Under the new immigrant investor venture capital pilot program, immigrant investors will be required to make a $2-million investment for 15 years into what CIC is calling a “fund of funds” operated by the Business Development Bank of Canada. Applicants will have no say over how the “fund of funds” operates, and will have to be prepared for the possibility that they will lose the entirety of their investment.

The new program also requires that applicants have a net worth of $10 million derived from lawful, profit-making activities. Applicants will need to have their net worth verified by a designated due diligence service provider, typically a large accounting firm. Applicants will presumably be responsible for paying these firms to verify the legality of their net worth. Ineligible sources of funds include family inheritances and income derived from employment at state-owned enterprises.

The program also features education and language requirements. Prospective applicants must take an English or French language test from a designated testing agency, and achieve a language result similar to those in other economic immigration programs. As well, investors must have obtained a Canadian post-secondary educational credential or obtained a foreign-obtained credential that is equivalent to Canadian post-secondary education. Applicants who do not have a post-secondary credential must instead be able to demonstrate a $50 million net worth.

As noted above, CIC is waiting for 500 people to apply to the pilot program. However, it will not operate on a first-come first-serve basis. Instead, CIC will then randomly select 60 applicants through a lottery for processing. The remaining applicants will have their applications returned.

A tough thing to market

It is not surprising that so few people are applying to the immigrant investor venture capital pilot program.

The major disincentive in applying is that most individuals who meet the program’s language and educational requirements will qualify for other Canadian immigration programs that do not require parting with $2 million for 15 years, or, if the “fund of funds” loses money, forever.

Prospective applicants have also expressed skepticism at the notion that they would prepare and submit immigration applications, disclose sensitive financial information about themselves to a foreign government (and which may in the future share this information with other governments under information sharing agreements), when they cannot even be sure that CIC will process their application once submitted. Because CIC has announced that it will only process 60 out of 500 applicants, there is only a 12 per cent likelihood that the applicant’s time and effort will result in success.

Finally, an unfortunate legacy of the termination of the old investor program is that many prospective investors are simply wary of trusting the Canadian government. It is difficult to tell a person whose permanent residence application was terminated that they should now trust the Government of Canada with $2 million.

The new deadline to apply to the immigrant investor venture capital pilot program is April 15. I think that the odds that CIC will extend the application deadline again are higher than the odds that it will process any applicant’s application.

Government of Canada To Terminate Federal Investor Queue

Ever since the Federal Court dismissed a class-action lawsuit over the Government of Canada’s decision to terminate the Federal Skilled Worker Program backlog, many immigration practitioners have wondered if the government would do the same thing to the Federal Immigrant Investor Program (“FIIP”) backlog.  On February 11, 2014, the governing Conservative Party of Canada stated that it would.  The 2014 federal budget, called Economic Action Plan 2014, states that the Government of Canada intends to return and refund “certain” FIIP applicants who applied before February 11, 2014.


Under the FIIP, Canada offers permanent residence in exchange for a guaranteed $800,000 loan (before 2010, the amount was $400,000). The FIIP has long faced criticism.  In 2010, Ryan Rosenberg, a Partner at our firm, wrote  in The Canadian Immigrant that:

Many savvy investors, like my client, look at a $400,000 investment without interest as a lost opportunity and, instead of investing the full amount, seek out financing from one of a number of government-authorized financial intermediaries (“banks”).

For years now, the banks themselves, consultants and lawyers have promoted a financing option at $120,000. For $120,000, a bank will lend an investor funds required for investment under the program and facilitate the investment itself. The investor is also required to sign an assignment of the $400,000 refund from the government to the bank at the end of the five-year term.

The $120,000 covers all interest charges and bank fees associated with the investment and at the end of the five-year term the investor receives no money in return. So where does all that money go?

Based on today’s interest rates (which we know are going up sometime soon), the cost to finance a $400,000 loan for five years is about $1,000 a month in interest alone. So, over 60 months, the cost should run about $60,000. If any of the $120,000 payment is used to bring down the total amount borrowed (think of it like a down payment on your house), the monthly interest payment would also drop. So, if $60,000 of the $120,000 goes to the bank for interest that does seem quite reasonable. Banks are in the business of lending money, after all.

So now we are left with $60,000 — where does that money go?

Commission omission

And it isn’t only $60,000 left in the pool. It’s more like $88,000. Theoretically, it is the provinces who benefit from the $400,000 investments made under this program; in return for raising money, the provinces pay out a commission of $28,000 to the banks and that commission trickles down to the consultant and lawyers (a large number of whom aren’t even Canadian taxpayers) who refer clients to the banks.

Most banks top up that commission and my research shows a range in commissions payable to consultants and lawyers of $23,000 to $58,000. Assuming $58,000 goes to the referring party, $30,000 of the $88,000 remains for the bank in addition to the $60,000 earned in interest, for a total of a $90,000 profit. Although most were forthcoming, when I called one of our banks to ask about their terms under the program, the representative refused to tell me what commission they were willing to pay.

When I explained to her that I wanted to know because I wanted to tell my client where his money was going, she was shocked and appalled that I would be so honest with him. Most people, she explained, don’t tell their clients about the commission. I’ve come to learn that the $120,000 financing option is so popular and is marketed so well that most immigration practitioners rely on it without any consideration to other options or where the money goes.

I’ve also come to learn that the practice of not disclosing commissions to clients is also widespread in the consulting community and quite possibly in the legal community albeit to a lesser extent based on the people I’ve talked to.

In addition to questionable practices surrounding commissions, the Government of Canada began to question whether the FIIP was attracting the type of immigrants that the Government of Canada wanted.  According to CIC, over a 20-year career, an immigrant investor pays about $200,000 less in income taxes than a federal skilled worker and almost $100,000 less in taxes than one live-in caregiver.  A CIC backgrounder further stated that:

A recent survey concluded that immigrant investors have the lowest official language ability of any immigrant category, including refugees. Official language ability is a key factor in the successful integration of immigrants. Data also indicate that immigrant investors are less likely than other immigrants to stay in Canada over the medium to long term.

The existing IIP is of limited economic benefit to Canada. There is very little “new” money coming into Canada. Almost all initial investments made through the program come from loans from Canadian banks to provincial governments.

The amount of IIP capital actively invested in economic development initiatives has been disappointing. The requirement for provinces to guarantee repayment of IIP investments after five years limits their ability to invest funds into more high-risk initiatives that tend to reap greater rewards for Canada in terms of true innovation and job creation. Fifteen years after provinces and territories were factored into the equation, less than half of the funds are actively invested.

Step by Step to Termination

The first change that the Conservative Party of Canada made to the FIIP was to increase the required investment amount from $400,000 to $800,000, and “pause” the intake of applications.  At the same time, Citizenship and Immigration Canada’s Ministerial Instructions II stated that FIIP applications submitted after June 26, 2010, would be processed concurrently (rather than after) applications submitted before.  MII stated:

Federal Immigrant Investor applications received on or after the coming into force of the proposed regulatory amendments to the definitions of “Investor” and “Investment” applicable to Business Immigrants in Division 2 of Part 6 of the Immigration and Refugee Protection Regulations shall, as a category, be processed concurrently with those federal applications received prior to the administrative pause in a ratio consistent with operational requirements.

Operational Bulletin 252 provided even further instructions, stating that for every two $400,000 investor applications visa offices had to process one $800,000.  OB 252 stated:

In addition, effective December 1, 2010, visa offices are to put new applications under the federal IIP – those received on or after December 1, 2010, – into process immediately. New and old (i.e. applications under the federal IIP received before June 26, 2010) applications will be processed concurrently. As a general rule, visa offices should process applications under the federal IIP in a 2:1 case processing ratio of old inventory applications to new applications received on or after December 1, 2010. The concurrent case processing ratio of 2:1 is provided as a guideline only; this ratio may change over time in accordance with operational requirements and may not apply equally to all visa offices depending on the volume of investor class applications processed by a given visa office.

The decision not to process applications in the order that they were received was but one of many examples of Citizenship and Immigration Canada abandoning first-come-first-served processing.

The Backlog

Not surprisingly, the FIIP backlog grew. As of February 11, 2014, it stood at 65,000 individuals.

In January, the Federal Court dismissed an application by several investors who sought that the court order Citizenship and Immigration Canada to expedite the processing of their application.  An affidavit filed in support of Citizenship and Immigration Canada, which we have obtained, provides useful insight into how bogged down visa posts were with applications, and how long it would likely take for many applications to even be opened.

Budget 2014

Perhaps not surprisingly then, Budget 2014 states that:

The Government of Canada is committed to immigration that contributes to job creation and economic growth. In recent years, significant progress has been made to better align the immigration system with Canada’s economic needs.

The current Immigrant Investor Program stands out as an exception to this success. For decades, it has significantly undervalued Canadian permanent residence, providing a pathway to Canadian citizenship in exchange for a guaranteed loan that is significantly less than our peer countries require. There is also little evidence that immigrant investors as a class are maintaining ties to Canada or making a positive economic contribution to the country. Overall, immigrant investors report employment and investment income below Canadian averages and pay significantly lower taxes over a lifetime than other categories of economic immigrants. For these reasons, the Immigrant Investor Program has been paused since July 2012 and the Entrepreneur Program since July 2011.

Economic Action Plan 2014 proposes to end these underperforming programs.

To eliminate the existing backlog, which is diverting resources away from better performing economic immigration streams, the Government intends to return applications and refund associated fees paid by certain federal Immigrant Investor Program and Entrepreneur Program applicants who applied on or before Budget Day.

In place of the current Immigrant Investor Program, the Government will introduce a new Immigrant Investor Venture Capital Fund pilot project, which will require immigrants to make a real and significant investment in the Canadian economy. The Government will also undertake consultations on a potential Business Skills pilot program. Together, these pilots will test new and innovative approaches to business immigration that will better fuel the continued growth of the Canadian economy.

To Follow

As noted above, we were not surprised by the Government of Canada’s decision to both end the FIIP and to terminate the backlog.  It remains to be seen which FIIP applications will be terminated and which ones will not be.  I would be surprised if the Government of Canada terminated applications where investors committed to loaning the Government of Canada $800,000, and expect that it will only be the $400,000 applications which are terminated.  That is just speculation.

It will also be interesting to see what, if anything, Quebec does.  Quebec has its own investor program which is almost identical to the FIIP.  The processing times for it are massive.  What Quebec chooses to do, and/or anything the federal government tries to do on this issue, will be extremely interesting to watch over the next several months.


A Caution on Switiching from $400,000 to $800,000

The Canadian Immigrant Investor Program re-opened on December 1, 2010. The requirements for the program have increased. Applicants will now have to prove a personal net worth of CAD 1.6-million (an increase from the previous $800,000) and make a passive $800,000 (an increase from the previous $400,000) investment with the Government of Canada.
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Immigrant Investors and the $120,000 Myth

The “common scenario” under the old immigrant investor program was that investors would pay financial intermediaries $120,000 to finance their loans to the Canadian government. At least 90% of immigrant investors paid this amount. However, those immigrant investors that paid $120,000 to the financial institution paid too much.
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Decline in Chinese Immigration to British Columbia : 渥京改政策 省推薦名額增

On Tuesday, June 29th, I was quoted in Ming Pao, Vancouver’s largest Chinese daily newspaper.

另一本地移民律師辛湉王(Steven Meurrens)則認為,技術移民及新推出的加拿大經驗類別(Canadian Experience)移民均甚多限制,有意申請人士最好另走他途,他認為PNP仍是移民最快增長點,但許多人對PNP仍認識不夠。

辛湉王 續稱,雖然近日投資移民的投資額及資產額都提高了一倍,但聯邦及省府均有充分信心,認為投資移民金額提高一倍不會影響申請人數,這是政府迅速增加收入的有 效途徑。

My comments were a response to recent Chinese immigration trends to British Columbia.

The interviewer wanted to know my response to the following statistics compiled by BC Stats:


Family Refugee FSWP PNP LIC Entrepreneur Investor Other Total
2009 2,269 59 1,702 872 73 101 3,977 322 9,375
2008 1,957 43 3,235 654 32 120 3,712 161 9,914
2007 2,387 90 2,872 369 6 222 2,162 151 8,259
2006 2,412 147 4,795 229 8 259 2,894 186 10,930
2005 2,065 210 7,749 52 3 209 3,306 94 13,688

It is clear that in the 2005 to 2009 period there has been a decline in PRC immigrants to British Columbia. This certainly runs counter to popular myth.

Second, that decline can be largely explained in the near collapse of immigrants under the Federal Skilled Worker Program (“FSWP“).  This decline has occurred across Canada, and is not limited to China.

Third, there has been a huge increase in the amount of immigrants under the Provincial Nominee Program.

I was also asked whether I thought that there was a deliberate effort on the part of Citizenship and Immigration Canada to keep Chinese people out. I think that the answer is clear that except for the FSWP the amount of Chinese immigrants in the other categories remain steady.  Some have speculated that this is due to Chinese people failing to meet the language requirements. In my opinion, if this were the case, then there would have ALWAYS been a low acceptance rate. Surely the amount of Chinese people that are proficient in English is equal to, if not higher than, the amount that could speak English in 2005.

The FSWP has long been in decline. The recent reduction of the amount of eligible occupations and the placing of a cap on these occupations are all signs that this will continue.

Prospective immigrants should thus seriously consider the Provincial Nominee Program.

Federal Investor Program Requirements To Double

Image by bitmask

In a much anticipated change, the Federal Government has announced a series of changes to the Federal Immigrant Investor Program (“FIIP“) in the Gazette.  Changes to the Quebec Investor Program are expected shortly.

The Doubling

The Government of Canada is proposing that amendments be made to the definition of “investor” and “investment” in section 88 of the Regulations that would increase the investment amount from $400,000 to $800,000 and the personal net worth amount from $800,000 to $1.6M for Investor class applicants.

Administrative Pause

No FIIP  applications will be accepted unless they are post-marked or received by the designated Citizenship and Immigration Canada office before June 26, 2010. This pause will extend until the coming into force of proposed regulatory amendments to the definitions of “Investor” and “Investment” applicable to Business Immigrants in Division 2 of Part 6 of the Immigration and Refugee Protection Regulations.

Priority Processing

FIIP applications received on or after the coming into force of the proposed regulatory amendments shall be processed concurrently with those federal applications received prior to the administrative pause in a ratio consistent with operational requirements.

Why The Doubling?

The Government of Canada is first of all confident that this will not reduce the number of applicants. 80% of FIIP applicants in 2009 came from the Asia-Pacific Region, which continues to boom despite the global economic crisis.

According to the Gazette, the increase will result in a net economic benefit to Canada of $59,229 per investment. In total, this would result in a benefit of $600,000,000 per year to Canada.

While $600,000,000 isn’t bad (you could almost fund security for a G8 summit with that amount), it’s interesting to note that an increase of $400,000 per investment only results in a $60,000 benefit. For reasons on why that is, and where the money goes, please see my colleague Ryan Rosenberg’s blog post on the matter.

Furthermore, the increase in the net-worth requirement is hoped to address an emerging liquidity issue with federal investment immigrants. As property values have increased throughout Asia (especially in China), it became increasingly easy for individuals to meet the $800,000 requirement. However, because federal investors were not required to sell any of their assets in order to immigrate, they did not bring with them the amount of capital that was originally hoped. The doubling of the requirement to $1.6 M is expected to result in an increased amount of capital entering Canada.