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One of the leading cases on procedural fairness is Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9.  There, the Supreme Court of Canada stated:

Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case. This right is well established in immigration law. The question is whether the procedures “provide an adequate opportunity for [an affected person] to state his case and know the case he has to meet” (Singh, at p. 213). Similarly, in Suresh, the Court held that a person facing deportation to torture under s. 53(1)(b) of the former Immigration Act, R.S.C. 1985, c. I-2, must “[n]ot only . . . be informed of the case to be met . . . [but] also be given an opportunity to challenge the information of the Minister where issues as to its validity arise” (para. 123).

In Therrien v Canada (Attorney General), 2017 FCA 14, the Federal Court of Appeal stated that the the required specificity of the notice provided an affected person is to be determined in light of all of the circumstances including consideration of whether the affected person was in a position to meaningfully respond. Where an interested person is misinformed about the issues, including the statutory provisions in issue, a Court may conclude the interested person was unaware of the case to be met.

In Lv v. Canada (Citizenship and Immigration), stated:

the issue is not so much whether the decision was “correct”, but rather whether, taking into account the particular context and circumstances at issue, the process followed by the decision-maker was fair and offered to the affected parties a right to be heard and the opportunity to know and respond to the case against them.

 » Read more about: Procedural Fairness at the Immigration Appeal Division  »

According to its website, the Canada Border Services Agency (“CBSA“) screens all visitors, immigrants and refugee claimants to keep Canada safe and secure. Inadmissible persons such as criminals or persons considered security risks are not allowed to enter or remain in Canada.

The following PDF contains a detailed breakdown of how this works and efforts to reduce backlogs.

 » Read more about: CBSA National Security Screening  »

Garcia Balarezo v. Canada (Citizenship and Immigration) is an interesting case which stands for the principle that it is unreasonable for IRCC to expect applicants to submit ATIP requests to learn the internal status of their file and what submissions they might need to make. The Court noted:

The officer recognized that both the May 2012 and June 2015 work permits were issued by IRCC in error. However, the officer asserted that Ms. Garcia’s May 2012 and October 2012 work permits “had clear notes on them that PA [principal applicant] was not part of the LC program.” This appears to have been very important in the officer’s thinking, as they repeated the point both in responding to one of Ms. Garcia’s submissions, and again in their conclusion, stating:

The errors made on CIC’s part (including issuing first work permit with med instructions to work in childcare field and adding the incorrect remarks to clients third work permit in 2015) have been taken into consideration and there is still insufficient evidence of H&C grounds to warrant exemptions. PA’s rep stated that PA and her employers were aware of Section 112 of the Immigration and Refugee Protection Regulations and were aware that the initial work permit had to be assessed and issued from outside of Canada and that an immigration medical needed to be completed in order to be eligible to apply for permanent residence. PA could have inquired through the Call Centre as PA’s first 2 work permits had very clear notes on them that PA was not part of the LC program.

[Emphasis added.]

The “very clear notes” in question were not, however, notes visible on the face of the work permits issued to Ms. Garcia or in any other document sent to Ms.

 » Read more about: No Expectation on Applicants to ATIP  »

Regulation 200(3)(a) of the Immigration and Refugee Protection Regulations provides that an officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought.

An issue that is becomming increasingly common is whether someone has sufficient language ability to perform the work sought.

In Singh v. CAnada (Citizenship and Immigration), 2021 FC 638 Justice Bell set aside the refusal of a work permit application for a truck driver.  There, an officer wrote “I have concerns regarding the applicant’s English language skills which are also listed as a requirement for the position on the LMO. While the applicant has an overall band score of 5.5. on the IELTS, I note that he only received a score of 4.5 in reading and a 5 in speaking. Although the LMIA does not explicitly state a minimum required IELTS score for this position, I note that the British Council classifies students at this band level as being a “Limited user [whose] basic competence is limited to familiar situations. [They] frequently show problems in understanding and expression. [They] are not able to use complex language.”

Justice Bell determined that relying solely on the IELTS description was improper. He wrote:

The visa officer does not mention the Canadian Language Benchmark, the prospective employer’s declared language requirement (level 4 of the Canadian Language Benchmark), nor does he or she mention the fact that the prospective employer qualified Mr. Singh’s language skills as excellent. Finally, I note that the British Council referred to students’ abilities. It clearly did not refer to an adult’s language abilities in his or her own trade or calling.

…

 » Read more about: Language Requirements and Work Permits  »