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.

Showing that the Visa Officer or IRB Member or CBSA Officer Was Biased

Many individuals think that either a visa officer, a Canada Border Services Agency (“CBSA”) officer or an Immigration and Refugee Board member is biased against them.

This is not an argument to make lightly.

The Supreme Court of Canada has held that in order for an individual to demonstrate that a government decision maker is biased, then:

the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. [T]hat test is “what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude.  Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly.

As well, the Supreme Court of Canada has also noted that:

Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.

As the Supreme Court of Canada stated, an accusation of bias is not something that should be undertaken lightly, and in the overwhelming majority of cases the Federal Court of Canada has dismissed such accusations.  The most common accusation that individuals often make is that an individual is biased because of their race.  The Federal Court of Canada has categorically rejected such race based allegations, and held that individuals are not entitled to decide who adjudicates their matter, but can only expect that they will be treated fairly.  In my experience, the race and gender of an adjudicator is completely, and thankfully, irrelevant in Canada’s immigration system.

There are, however, instances where the Federal Court did find that a reasonable apprehension of bias existed.

In Guemache v. Canada (Minister of Citizenship and Immigration), the allegation of bias involved the following exchanges and statements between an Immigration and Refugee Board member and an appellant:

Chairperson: I don’t put anybody in jail, I don’t condemn anyone to death, so rest assured, that’s already settled.

Chairperson: You see, I speak quite loudly – not in an attempt to intimidate you, Sir, but so that you understand me . . .

Chairperson.             Okay. And what happened?

R.             I came out to go take the bus, on my way, the distance . . . between the police station . . . the bus stop was . . . is a little bit far from . . . the police station. I was walking on my way and suddenly a car stopped, four people got out from . . . the vehicle, they came toward me, they insulted me, they hit me on the head, they told me that I was . . . what do you call it, a informant for the police.

Q.             And these people, did you know them?

A.             No.

Q.             Had you seen them before?

A.             No.

Q.             Did they say anything to you other than that you were a police informant?

A.             They said to me “You must stop doing this work.”

Q.             Did they . . .

A.             “And don’t think that we’ll . . .we’ll leave you in peace, we’ll get you.

BY THE CHAIRPERSON (addressing the claimant)

Q.             Why did . . . why didn’t they kill you right away, Sir?

A.             I don’t know, maybe I was . . . I was lucky.

. . .

BY THE COUNSELOR (addressing the Chairperson)

Q.             And can I ask a question?

A.             Yes, yes, yes.

BY THE COUNSELOR (addressing the claimant)

Q.             Why did you stay home?


Excellent question.

So, Sir, if you gave your passport to your brother on February 7, 8 or 10, 2002, to get a visa, can you explain to me how your brother gave this to someone, then, at some point, the visa was issued on January 28, 2002. So, if it’s a genuine visa, then, there’s like a problem, Sir. How can you give a passport to your brother without a visa on February 7, 8 or 10 and have a visa in your passport dated January 28, 2002

. . .

BY THE CHAIRPERSON (addressing the claimant)

Q.             Sir, does . . . “internal asylum” ring a bell?

The Federal Court ruled that the Member completely overstepped his boundaries, and that the applicant was denied the ability to present his case.  It described the member’s comments as  “gratuitous and uncalled for”.

In Kalkat v. Canada (Citizenship and Immigration Canada), a Citizenship Judge made the following comments to an individual who was requesting a language waiver:

Somebody who does not speak English or French will never be Canadian.

Tomorrow, I will grant citizenship to 800 people who all speak French or English; they all passed the test! Your lawyer has written to us that you cannot be able to learn about our country and language. Unfortunately, we receive this argument from hundreds and thousands of people.

The medical opinion on record was just an opinion of a person not as a doctor because doctors are not linguistic experts.

I am a judge and I apply the law, my first wife was Russian and my second wife was Romanian; they came as immigrants and learned.

During the hearing, I observed that you seem to understand all my questions and that you were able to converse fluently with your interpreter.

Many other people have trouble learning; some work harder at learning and some don’t and you should have learnt with the help of your husband and children.

If a negative decision is rendered, you can go to the Federal Court of Appeal and get an audition.

The Court found that this demonstrated bias, especially the reference to the Citizenship Judge’s ex-wife.

In Dena Hernandez v. Canada (Citizenship and Immigration), Justice Martineau determined that an Immigration and Refugee Board member demonstrated bias through aggressive questioning, and also by implying that twins were not normal.

In Kalombo Kabongo v. Canada (Citizenship and Immigration)Justice Martineau also determined that an Immigration and Refugee Board member demonstrated bias when the member acknowledged that he had pre-written a decision (which the member stressed wasn’t final) so that the member could issue the final written decision quickly.

As is hopefully shown, these examples are particularly blatant and egregious.  Most allegations of bias are unsuccessful because in almost every instance a visa officer, CBSA officer, or IRB member does do their best to maintain impartiality.

Finally, the Federal Court in Delos Santos v. Canada (Citizenship and Immigration) has also ruled that it is not a breach of procedural fairness for the same officer to determine both an applicant’s humanitarian & compassionate (“H&C“) application as well as an applicant’s Pre-Removal Risk Assessment (“PRRA“), and that there was no inherent bias arising from the same officer dealing with both a H&C application and a PRRA application for the same individual.

This decision was based on the Federal Court of Appeal’s (the “FCA“) decision in Oshurova v. Canada (Minister of Citizenship and Immigration) where the FCA answered the following certified question in the negative:

Is there an appearance of bias, in this case, because the same officer decided the application for a visa exemption on humanitarian and compassionate grounds as well as the Pre-Removal Risk Assessment?

Responding to Procedural Fairness Letters

Where an applicant submits a complete application, but an immigration officer nonetheless has concerns regarding the merits of it, the immigration officer will often provide a fairness letter to the applicant.  The failure to adequately respond to a procedural fairness letter is generally the refusal of the application.

Unfortunately, many individuals do not take the time to properly respond to the procedural fairness letter.  Upon review, it is often apparent that the reason for the inadequate response is either because the applicant did not understand the fairness letter, or because they simply did not know how to respond appropriately.

Accordingly, there are several things that applicants should know about responding to procedural fairness letters.

The first thing is perhaps the most obvious, and that is that applicants should address the issues that are raised in the fairness letter.  If a fairness letter asks you to provide detailed information as to what you were doing from 1996-1997, then provide detailed information.  However, it is generally unnecessary to anticipate future issues or questions that could arise but that are not immediately foreseeable, as Immigration, Refugees and Citizenship Canada will usually send another letter if it has concerns.

Vasilyeva v. Canada (Citizenship and Immigration), 2017 FC 551 is an example of where this did not occur, and where the Federal Court determined that the visa officer breached procedural fairness.  This was actually a case that I successfully argued in Federal Court, and so am quite familiar with the legal principles involved.

As Justice Barnes wrote:

The Applicant was seeking permanent residency in Canada. Her spouse’s Russian military service was obviously relevant to the application and the visa officer requested his service book by email dated August 24, 2015. The Applicant provided a copy of her husband’s service book issued in 1992, which was received on September 22, 2015. The dating of this record raised a fresh concern as can be seen from the visa officer’s file notes dated May 12, 2016:

Spouse: career in the Soviet military as an officer. Spouse submitted translated copy of military book: spouse served apparently 10 years, 1982-1992, attending military college for 5 years and then serving as a senior lieutenant in Saint Petersburg: spouse appears to have had no promotions despite formal military education and lengthy service. Spouse’s military booklet was issued in 1992, at the end of his service: this is highly unusual as his Soviet military booklet should have been issued when he was 18 years old (circa 1981), when he would have been called to register for mandatory military service; he should definitely have been issued a military booklet at the beginning of his military career service in 1982. NB that the 1992copy of the military booklet submitted does not indicate that it is a replacement or a duplicate. Original Military Booklet from 1981/1982, Detailed Military History table and Security Screening Required

Because of the above concern, the visa officer requested, within 60 days, the “original military book (confirming your service in the army from 1982 to 1992) and completed, attached form regarding your service in the army along with all details”. A few days later, a more detailed request was sent in the following form:

This is a follow-up message to our email dated 12 May 2016.

Please note that a copy of Vladimir Serdyuk’s military book is already on file; however, this military book was issued in 1992, at the end of Vladimir Serdyuk’s military career. In addition to the documentation requested in our 12 May 2016 email, please submit a certified translated copy of Vladimir Serdyuk’s military book that was issued to him in either 1981-1982, when he turned 18 and began his military service. If Vladimir Serdyuk does not have a military book issued in 1981-1982, please provide a detailed explanation as to why he does not have a military book dating from the beginning of his military service.

Please comply with our request within 60 days, otherwise your application for permanent residence in Canada will be assessed based on the documentation on file and may be refused.

Ms. Vasilyeva was unable to provide the 1981-1982 military book, and instead re-submitted the 1992 military book, along with a an explanation (which apparently was not received by the visa officer).

As the Federal Court decision then notes:

What happened next is the crux of the matter at hand. Instead of simply rejecting the application for failing to perfect the record, the visa officer identified an entirely new problem. He expressed a concern about the authenticity of the service book that had been submitted. This concern is reflected in the following passage from the visa officer’s file notes:

On 02 June 2016, applicant submitted an explanation letter, the original military book issued in 1992, and aDetails of Military Service table. I note that the military book looks brand new (no wrinkles, folds or wear & tear) even though it was issued 24 years ago. I also note that the corners of the military book submitted are not die-cut (as one would expect with a government-issued booklet) but rather appear to have been round-cut with scissors. These two factors call into question its authenticity.

Without informing the Applicant of the above credibility concern, the visa officer proceeded to refuse the application. This decision prompted a request for reconsideration which was also rejected.

As Justice Barnes found, this new credibility concern that arose as a result of Ms. Vasilyeva’s response to the procedural fairness letter constituted an entirely new issue that necessitated a new procedural fairness letter.

As well, an applicant can generally assume that they only need to respond to the concerns raised in the fairness letter.  The Federal Court has repeatedly determined that it is a breach of procedural fairness for officers to engage in a “bait-and-switch.” In Jin v. Canada (Citizenship and Immigration), 2014 FC 612 for example, Justice Roy held that:

[Immigration, Refugees and Citizenship Canada] raised a very specific concern in the fairness letter: will the applicant reside in the Province of Quebec. That is the matter that is addressed squarely in the response. There is no further discussion of the credibility or authenticity of that information. Rather, a completely different issue, the return to Canada altogether, becomes the reason for the refusal. Black’s Law Dictionary (West Group, 7th ed) defines “bait and switch” as “A sales practice whereby a merchant advertises a low-priced product to lure customers into the store only to induce them to buy a higher-priced product.” Although most analogies are somewhat defective, this one illustrates the point in that the applicant is lured into thinking that the issue is one thing, to be told that it is something else of an even higher order.

Finally, 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.  For example, if IRCC requests five documents, and you only provide three, it is important to indicate that the other two documents will be provided shortly, and by when.


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 not under an 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.

Examples from Jurisprudence

Farooq v. Canada, 2013 FC 164 (“Farooq“) is a useful example of how to distinguish a refusal based on credibility concerns vs. one of insufficient evidence. There, 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 was a breach of procedural fairness provide a comprehensive summary of the law on this issue, and I have reproduced them in full, bolding the key points:

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:


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)

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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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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