Important Tip for Immigrating to Canada

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.

The breadth of procedural fairness must be adapted to the context in which it arises (Baker, SCC, 1999). When no extrinsic evidence is relied on, it is unclear when exact;y it is necessary to afford an Applicant an interview or a right to respond.  However, there will be a right  to respond under certain circumstances. (Li, 2008 FC 1284).

In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. The application was deficient as it failed to include required information regarding the applicant’s salary and benefits. The applicant argued that she should have been told that this information was missing, and been given 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 the judge noted, the process is clear. An applicant must provide a complete application.

Contrast this with what happened in Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759. There, the application was complete and sufficient. 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 noted that the duty of procedural fairness in the decisions of visa officers [is] at the low end of the spectrum. However, the judge 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.

This approach is similar to that recently taken in Grewal v. Canada (Citizenship and Immigration), 2011 FC 167.  There, an application was rejected because of a poor IELTs score.  The Court noted numerous factors that resulted in a duty to seek additional information including, 1) that the Manual specified that additional information would be required for doubts over AEOs, 2) that the language proficiency derailed the whole claim for permanent residence, and 3) that the consultant had thoroughly explained the reason for the poor test and had stated that another would be forthcoming.  Accordingly, procedural fairness dictated that a fairness letter or interview be provided.

In  Singh v. Canada, 2010 FC 1306, meanwhile,  an officer rejected a work permit application because the only documents which were submitted to support the applicant’s employment experience as a Ragi were 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 considered with the veracity of letters, and did not request further documentation.

Conclusions

In 2011, the Federal Court released its decision in Kaur v. Canada, 2011 FC 219.  In three paragraphs, the Court provided what I think is 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:

[24]           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).

[25]           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).

[26]           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.


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