Canadian Immigration Embassy Interview Strategies and Tips

When visa officers have concerns regarding a completed application, they often convoke interviews. The interview provides the applicants to address these concerns. In this post I hope to convey to applicants the basic procedural fairness rules that they can expect.
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Procedural Fairness Where Credibility is an Issue

In any application to Immigration, Refugees and Citizenship Canada (“IRCC“), the burden is on the applicant to put forward a complete, convincing and unambiguous application which provides sufficient evidence to establish that the requirements of Canadian immigration legislation have been met.  Visa officers are under no obligation to ask for additional information where the submitted material is insufficient.   However, where there is a concern regarding the credibility or the genuineness of the evidence submitted, as opposed to the sufficiency of or weight to be given to that information, then the duty of fairness generally requires that the applicant be given the opportunity to address the concern.

In Farooq v. Canada, 2013 FC 164 (“Farooq“), for example, IRCC’s refusal letter stated:

He claims he worked from January 2005 to August 2006 as software developer and from 2006 to present as manager (software development) for Tricastmedia PVT Ltd in Lahore Pakistan. Such rapid promotion is not credible as computer and information systems managers normally require several years of experience in systems analysis, data administration software engineering, network design or computer programming, including supervisory experience. Some of the duties in his employment letter repeat verbatim the duties of NOC 0213 which raises the question of the credibility of that employment letter. The other duties are similar to those of information systems analysts and consultants (NOC Code 2171).

Although the NOC Code 0213 corresponds to an occupation specified in the instructions, the information submitted to support this application is insufficient to substantiate that applicant meets the occupational description and/or a substantial number of the main duties of NOC 0213.

Justice Roy’s reasons in determining that the failure of the visa officer to provide the applicant with an opportunity to respond to his concerns about credibility provide a comprehensive summary of the law on this issue, and I have reproduced them in full:

Justice O’Keefe was confronted to the same kind of situation in the case of Patelsupra. (“Patel“) Paragraphs 24 to 27 seem to me to apply squarely to the situation at hand. They read:

Regulation 75 clearly indicates that a foreign national is only a skilled worker if he can show one year of full time employment where he performed the actions in the lead statement of the NOC and a substantial number of the main duties.

As such, if the visa officer was concerned only that the employment letter was insufficient proof that the principal applicant met the requirements of Regulation 75, then she would not have been required to conduct an interview.

However, the officer states that her concern is that the duties in the employment letter have been copied directly from the NOC description and that the duties in the experience letter are identical to the letter of employment. I agree with the principal applicant that the officer’s reasons are inadequate to explain why this was problematic. I find that the implication from these concerns is that the officer considered the experience letter to be fraudulent.

Consequently, by viewing the letter as fraudulent, the officer ought to have convoked an interview of the principal applicant based on the jurisprudence above. As such, the officer denied the principal applicant procedural fairness and the judicial review must be allowed.

The narrow issue that needs to be decided here is whether or not this is a case regarding the sufficiency of the evidence, in the sense that, in the words of Justice Richard Mosley in Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 FCR 501:

… there is no obligation on the part of the visa officer to apprise an applicant of her concerns that arise directly from the requirements of the former Act or Regulations …

It is also certainly true that a visa officer does not have an obligation to provide a “running score” of the weaknesses in an application. However, where the issue is credibility, “the duty of fairness may require immigration officials to inform applicants of their concerns with applications so that an applicant may have a chance to “disabuse” an officer of such concerns, even where such concerns arise from evidence tendered by the applicant” (Rukmangathan, above, at paragraph 22). Justice de Montigny, in Talpursupra, finding support inHassani, summarized clearly what I believe is the state of the law:

It is by now well established that the duty of fairness, even if it is at the low end of the spectrum in the context of visa applications … require visa officers to inform applicants of their concerns so that an applicant may have an opportunity to disabuse an officer of such concerns. This will be the case, in particular, where such concern arises not so much from the legal requirements but from the authenticity or credibility of the evidence provided by the applicant.

Here, the visa officer indicates clearly that the credibility of the applicant, or lack thereof, is the fundamental concern he has. Contrary to other cases where an opportunity is given to the applicant to address the concerns, there is nothing of the sort in this case. It would seem to me that both Patel and Rukmangathanare dispositive of the issue and that the matter should be remitted to a different visa officer for the purpose of a re-determination of the matter.

Another example of this principle can be found in Madadi v. Canada, 2013 FC 176.  There, in determining that an applicant did not perform a substantial number of the Main Duties in NOC 0711, IRCC did not consider any duties in the applicant’s confirmation of employment which either copied the NOC descriptions or closely paraphrased them.  After not considering those job duties, the officer found that the applicant did not perform a substantial number of the duties listed in NOC 0711.  The Court determined that procedural fairness was breached, because the visa officer’s concerns related to the genuineness of the confirmation of employment.

Examining Whether Credibility is an Issue

When reviewing refusal reasons it is important to examine whether credibility may have been an issue leading to refusal.

Sometimes it is obvious.  For example, in Azizian v. Canada, a visa officer wrote:

 Given the availability of the information [about the CBI], I found it difficult to believe that the applicant has never heard of these concerns during his employment at CBI and since retiring… I do not find credible that the applicant would have not been involved in policy decision making and decisions concerning allocation of funds, especially since the PA held the position of Secretary General of the bank and because he indicated in his affidavit that his duty in 2003-2009 was to develop and supervise the implementation of the by-laws and guidelines for the Iranian banking system.

This was found to clearly be a credibility concern.

Credibility assessments are often implicit, however, rather than explicit. In Khodchenko v. Canada (Citizenship and Immigration), IRCC’s refusal reasons in part stated that:

REVIEWED INFO SUBMITTED FOR THE FILE. PI’S EXPENCES WILL BE PAID BY MR. NAZAREVICH – FAMILY FRIEND. IT IS NOT CLEAR WHY HE WOULD PAY SUCH AMOUNT OF MONEY FOR PI. NOT SATISFIED PI IS FORTHCOMING ABOUT THE PURPOSE OF THE TRIP. TIES TO UKRAINE ARE WEAK. REFUSED. (sic) [emphasis added]

The Federal Court found that the officer made a veiled credibility assessment of the benefactor and the applicant in questioning that the employment arrangement was what the applicants said it was, and that the officer accordingly owed a duty of fairness to the applicant to put his concerns directly and explicitly and give her an opportunity to respond.

In Rani v. Canada (Citizenship and Immigration), meanwhile, Madam Justice Strickland found that a visa officer’s  statement that “evidence of [the applicant’s] involvement with spouse’s business comes only from her own statements and that of her supporting relative in Canada. It is therefore not clear to what extent the context of English language use…could be considered familiar” to also be an implicit credibility assessment, and ordered the matter re-decided.

Another Helpful Summary of this Principle

Bajwa v. Canada (Immigration, Refugees, and Citizenship) contains another helpful summary of the distinction between credibility and insufficient evidence. There, Justice Russel wrote:

These words give rise to a familiar dispute in the jurisprudence as to whether the Visa Officer is questioning the credibility of the Applicants or simply deciding that the evidence is not sufficient to support the criteria that must be established in order to qualify for the status applied for. Justice Kane provided a summary of the Court’s approach to this issue in Ansari v Canada (Citizenship and Immigration), 2013 FC 849:

If the concern is truly about credibility, the case law has established that a duty of procedural fairness may arise [Hassani]. However, if the concern is about the sufficiency of evidence, given that the applicant is clearly directed to provide a complete application with supporting documents, no such duty arises. Distinguishing between concerns about sufficiency of evidence and credibility is not a simple task as both issues may be related.

The case law has established that each case must be assessed to determine if the concern does in fact relate to credibility. In several of the cases referred to, although the duties were copied or paraphrased from the NOC, there were additional factors confirming that the concern of the officer was about the authenticity or veracity of the document or the credibility of the author of the document. Simply using the term credibility is not determinative of whether the concern is about credibility, though the use of the term cannot be ignored.

Applicants often find it very difficult to understand this distinction. They reason that if their own representations are not accepted then they are not believed, so the officer concerned must be questioning their credibility and this requires an interview or an adequate opportunity to address credibility on grounds of procedural fairness.

I think the issue is best explained in lay terms by recognizing that applicants have a double obligation. First of all, they are under a duty of candor to tell the truth and not to conceal relevant facts. If an officer suspects that the duty of candour is not being met, then he or she must put the matter to the applicant and provide a reasonable opportunity – either in writing or in person – for the applicant to address the officer’s concerns. Where misrepresentation or breach of the duty of candor is the issue, then an application is usually refused on the basis of misrepresentation and s 40 of the Act.

But applicants also have an obligation – over and above the duty of candor – to support their applications with documentation that confirms their positions. Documentation is required by the legislation in all applications and a failure to provide adequate documentation can result in a refusal that is not based upon credibility. If this were not the case, then all applications would have to be accepted upon their own unsupported assertions. There will be situations where documentation is not available and the Act makes adequate allowances for this. Applicants are permitted to explain why they cannot provide documents that are required and/or expected in their particular situations.

In the present case, the treatment of the two letters from Mr. Singh has to be read in the context of the Decision as a whole in order to determine what the Visa Officer means by “satisfied.” Does she mean that the evidence is inadequate to support the application or does she mean that she questions the veracity of that evidence when she says that “I am not satisfied that the client is a bona fide worker under R 205 (D) or will leave after her authorized stay.”

In all work permit applications and extension applications, the officer has to decide on the evidence whether the applicant is likely to leave at the end of the period requested. And interviews and/or fairness letters are not required in most situations. As the Respondent points out, it is generally not a procedural fairness requirement that work permit applicants be granted an opportunity to respond to the concerns of officers. However, there have been situations in the context of work permit applications where officers have been required for reasons of procedural fairness to seek further clarification for credibility concerns in particular.

In Hamza v Canada (Citizenship and Immigration), 2013 FC 264, the application was rejected on the basis that the work experience letter mirrored the job duties of the NOC description, which the visa officer described as “self-serving.” Justice Bédard found that by stating the letter was self-serving, the officer was saying that he or she doubted the veracity of its content. It was thus distinguished from Kaur, above, because the applicant had provided sufficient evidence and a duty to provide the applicant an opportunity to respond was found. The decision quoted Justice Snider in Perez Enriquez v Canada (Citizenship and Immigration), 2012 FC 1091:

The first duty raised by the Applicant is the duty to seek clarification. When an Applicant puts his or her best foot forward by submitting complete evidence and a visa officer doubts that evidence, the officer has a duty to seek clarification (Sandhu, above at paras 32-33). Although this duty is not triggered in situations where an applicant simply presents insufficient evidence, it will arise if the officer entertains concerns regarding the veracity of evidence; for example, if the officer questions the credibility, accuracy or genuine nature of the information provided (Olorunshola, above at paras 32-35). On the facts of this case, a duty to clarify may have arisen but was discharged by the Officer’s questions to the Applicant during the interview. There was no breach of fairness.

The second duty raised by the Applicant is a duty to provide an opportunity to respond. When an applicant submits information that, if accepted, supports the application, he or she should be given an opportunity to respond to the officer’s concerns if the officer wishes to make a decision based on those concerns (Kumar, above at paras 30-31). Procedural fairness may require an interview; for example, if a visa officer believes an applicant’s documents may be fraudulent (Patel, above at paras 24-27). (…)

(some references omitted)

Justice Zinn’s decision in Madadi v Canada (Minister of Citizenship and Immigration), 2013 FC 716 at para 6 provides a succinct summary:

The jurisprudence of this Court on procedural fairness in this area is clear: Where an applicant provides evidence sufficient to establish that they meet the requirements of the Act or regulations, as the case may be, and the officer doubts the “credibility, accuracy or genuine nature of the information provided” and wishes to deny the application based on those concerns, the duty of fairness is invoked[.]

(references omitted)


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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The Right to Counsel at the Port of Entry

Section 10(b) of the Canadian Charter of Rights and Freedoms provides that:

10. Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right; and

In the immigration context, the right to counsel does not arise at most secondary examinations, unless the person is actually arrested or retained.

As such, the Canada Border Services Agency’s (“CBSA“) general policy is not to permit counsel at examination if detention has not occurred. In practice, officers will often waive this policy if they are satisfied that legal representatives will not interfere with the examination process.

Continue reading “The Right to Counsel at the Port of Entry”


Asking the Embassy to Re-Consider an Application

Once a decision has been rendered in relation to an application for a humanitarian and compassionate exemption, is the ability of the decision-maker to reopen or reconsider the application on the basis of further evidence provided by an applicant limited by the doctrine of functus officio?
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The Doctrine of Legitimate Expectations [Updated – July 17, 2014]

The doctrine of legitimate expectations is a procedural doctrine which has its source in the common law. Because the doctrine of legitimate expectations is a common law principle, it does not create substantive rights.
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Responding to Procedural Fairness Letters

Where an applicant submits a complete application, but an immigration officer nonetheless has concerns regarding the application, the immigration officer will often provide a fairness letter to the applicant.

We often review applicants’ responses to fairness letters.  It is often apparent that this is either because the applicant did not understand the fairness letter, or because they simply did not know how to respond appropriately.

In this post, which will be updated frequently, I will be providing a series of tips for applicants on how to respond to fairness letters.

1) Address the issues that are raised in the fairness letter.  If the Fairness Letter asks you to provide detailed information as to what you were doing from 1996-1997, then provide detailed information. You can generally assume that you only need to respond to the concerns raised in the Fairness Letter, as the Federal Court has recently determined that it is a breach of procedural fairness for officers to engage in a “bait-and-switch.” (Jin v. Canada, 2014 FC 612)

2) If you are unable to include all the information that you require in a response to a fairness letter, but you would like to submit missing information a short period later, then make sure that your first response indicates that there is more information coming.  (Reznitski)

 


Procedural Fairness Owed by Provincial Nomination Programs to “Fraudulent” Consultants

The Saskatchewan Queen’s Bench (the “Court“) in Kaberwal v. Saskatchewan (Economy), 2013 SKQB 244 has released a decision clarifying the procedural fairness owed by provincial nomination programs to immigration representatives accused of fraud.  To the best of my knowledge, it is the first decision on this issue.

The Facts of the Case

On December 31, 2012, Saskatchewan’s Ministry of Economy, Immigration Services (the “Ministry“) suspended an immigration consultant’s (the “Consultant“) right to submit applications to the Saskatchewan Immigration Nominee Program (“SINP“) for a period of two years.  SINP officials accused the Consultant of fabricating job offers for employers who informed SINP that they never saw or signed the job offers that the Consultant submitted to SINP without their knowledge.

The Ministry sent the Consultant a letter which, amongst other things, stated the following:

We have reviewed seven job offers from Saskarc Industries that you submitted on behalf of seven applicants that have you listed as the third party representative. Part of the review of the application includes verifying the validity of the documents and information included in the application. As a representative, you have signed and agreed to the Saskatchewan Immigrant Nominee Program (SINP)’s Code of Conduct for Representatives which states that you will provide truthful, accurate and complete information to the SINP and that you will be personally accountable to the SINP for all aspects of the application.

Our view of job offers from Saskarc Industries Inc. included contacting the company to confirm their validity. Our conversations with Saskarc revealed that they did not issue these seven job offers and they are not written in their standard format. Furthermore, they have indicated that these job offers are fraudulent.

….

We would like to give you an opportunity to respond to this information. We will afford you 30 days from the date of this letter to make any representations in this regard and to provide any reliable and verifiable evidence that you did not provide fraudulent information to the SINP. If it is determined that you have submitted fraudulent information to the SINP, you will be unable to act as a representative of any person(s) wishing to access our programs and services, including the SINP, for a period to be determined by myself. Additionally, all applications that are currently in process that list you as a third party representative will be returned and those that have been nominated will be reviewed to ensure that all information submitted is bona fide.

The Consultant, who did not retain counsel, responded, stating that:

I am writing in response to your letter dated August 2012 regarding the employer SASKARC INDUSTRIES INC.

Carl was HR of Saskarc Industries a year ago and he signed the offer for Welders and Fitters and at that time he was looking for 7-8 welders fitters and after that I didn’t contacted (sic) the company as we submitted the files and we are waiting for any reply from SINP office. And in second week of August 2012 I called the company to get an update and to find out if offers were still valid than (sic) I came to know that Roberta is HR of the company. Then I talked to Roberta and explained everything about the offers signed by Carl and I adviced (sic) her to do online registration and she did online registration as well.

Then on August 19th I left for India and when I came back I got this letter from your office. When I contacted Roberta she explained (sic) me that she was not aware of offers given by Carl and she signed 12 more offer (sic) and out of 3 or 4 already got nominations.

..

The format of offer letters was different because we always used this format for all files submitted by our office to SINP, which Carl had signed and the offer given by Roberta might have different format.

On December 31, the Ministry informed the Consultant that SINP was prohibiting the Consultant from submitting applications for two years.  The Ministry wrote:

Thank you for responding to the letter sent to you by the Program Integrity Unit (PIU) dated August 14, 2012. The letter was issued in order to give you the opportunity to respond to PIU findings that seven job offers from Saskarc Industries that you submitted on behalf of seven applicants that have been found to be fraudulent.

The PIU has confirmed with Saskarc Industries that while they did have a signed agreement with you, they did not sign these job offers and that they are fraudulent. Furthermore, they have indicated that all job offers issued by their office are on letterhead.

Based on this information the PIU has determined that you knowingly submitted fraudulent job offers to SINP. As a result of the foregoing, we will not accept any applications for any other programs and services, including the SINP, where you are indicted (sic) as the representative for a period of two years from the date of this letter.

SINP then informed the Consultant that applications in which she was the representative that SINP was currently processing would be returned to the prospective nominees with a letter informing the individuals that SINP was no longer accepting applications filed on their behalf by the Consultant.

No oral or in-person hearing was conducted by the Ministry.

The Consultant testified that the Ministry’s decision cost her 70% of her business.

Did the Ministry breach the duty of procedural fairness owed to Kaberwal by failing to hold an oral hearing before making its decision?

The Consultant argued that the Ministry had an obligation to hold an oral hearing before rendering its decision and in failing to do so breached the duty of fairness owed to her.  The Ministry argues that the Consultant was not entitled to an oral hearing.

The Court confirmed that the audi alterum partem principle, which requires a decision maker to provide adequate opportunity for those affected by a decision to present their case and respond to the case against them, does not confer an unqualified right to an oral hearing unless otherwise stipulated by statute.  Rather, what is required is that parties be given the opportunity to put forward their arguments.  Furthermore, unless otherwise prescribed by statute, the content of input rights (i.e. written submissions vs. oral hearing) is at the discretion of the decision-maker subject to the supervisory role of the court to review the propriety of that choice.

Citing Baker v. Canada, the Court noted that the factors relevant to the scope of participatory rights include:

1) the nature of the decision being made and the process followed in making it;

2) the nature of the statutory scheme;

3) the importance of the decision to the individual affected;

4) the legitimate expectation of the person challenging the decision in relation to the procedure to be followed, and

5) the choice of procedure made by the agency itself and institutional constraints particularly where the statute limits the decision-making ability to chose its own procedures.

The Nature of the Decision

The Court found that generally where the credibility of witnesses is considered relevant, its importance to the process often weighs in favour of holding an oral hearing.  If a tribunal’s decision may turn on findings of fact made from conflicting evidence or on the credibility of witnesses, there may be a right to an oral hearing and cross-examination of those witnesses. Where only the credibility of the individual affected is in issue, that party should be heard orally, even though the rest of the hearing may be conducted in writing.  If none of the important facts are in dispute and there is no “accuser” to be questioned, an oral hearing may not be necessary. If there is sufficient evidence on which to make a decision, other than the evidence on which credibility is an issue, an oral hearing is not necessary.

In this case, the Court held that the allegation of fraud was a serious matter based on credibility, that it is generally considered difficult to prove, and that this favored an oral hearing.

The Statutory Scheme

As noted by Court, SINP has no statutory basis and its officials do not exercise any statutory authority.  Its processes, forms, guidelines, criteria, requirements, evaluation and decision making, etc., are all created and governed by broad based ministerial policy.  As such, there is no statutory scheme applicable to SINP and thus no statutory appeal or other safeguarding processes open to the Consultant. The decision rendered was final and decisive, and this favored the granting of an oral hearing.

The Importance of the Decision

There was no question about the importance of the decision to the Consultant.  She lost 70% of her business, and her reputation was ruined.  In the legal and consulting industry, a poor reputation undermines both present and future relationships, referrals and business interests.

Legitimate Expectations

In the absence of a statutory scheme, the Court found that it was unclear what process the Consultant expected the Ministry to follow. There appeared to be no known track record for how a Provincial Nomination Program would conduct an investigation, receive, assess and weigh information provided by those affected, or how to resolve discrepancies of evidence.

Limitations Imposed by Statute

The Court reiterated that despite there being no statutory scheme governing investigations, third party allegations, degree of participatory input and ultimate decision making for the Ministry, the Ministry consciously choose to follow the written submission format without any direct in-person meetings.  There was no suggestion the Ministry possessed any particular expertise in developing its choice of process.

Result

The Court stated:

Balancing the aforementioned factors, [the Consultant] should have been given an in-person hearing. It is unnecessary for the format of the actual hearing to conform to the traditional trappings of the judicial process so long as [the Consultant] had a meaningful opportunity to challenge the evidence and credibility of Carl Hodgson and Roberta Taylor, and a meaningful opportunity to respond.  It was equally important for Kaberwal to have been informed of the precise evidence relied upon by the Ministry in making its findings of fraud.

Interestingly, the Court also found that it could not order SINP to issue a retraction letter to the Consultant’s clients.