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.

Student Partnership Program Expands to China : 中加學生合作計劃

The Canadian embassy in Beijing has expanded the Student Partnership Program originally launched in India to China.

The program creates a special processing channel at the Beijing visa office for students destined to member institutions of the Association of Canadian Community Colleges, whose membership includes Camosun College, Douglas College, Kwantlen Polytechnic University, and Vancouver Community College. Students using the program will experience a far shorter wait time than normal applicants, in some cases less than two weeks.

The application form can be viewed here: http://www.canadainternational.gc.ca/china-chine/assets/pdfs/immigration/beijing/documents/SPP_Application_Kit_2010_07_EN.pdf

This story broke in today’s Ming Pao, both as a front page story, and as a small story with my comments here:

在技術移民難度顯著增加的情況下，加國駐中國大使館新推出的中加學生合作計劃，有望成為中國一般社會人士移民加拿大的新途徑。

移民律師辛湉王(Steven Meurrens)指出，先到本地學院習得一技之長，又有實習經驗的留學生勢必更受加國移民部歡迎，只要符合規定，無論通過聯邦經驗類(CEC)，還是省提名類別(PNP)移民均更易成功，因為加國非常需要這些能夠通過技術服務社會、能有效融入本地的青壯年，他認為SPP有望成為一個新的移民增長點。

留學顧問丁方方表示，通過留學移民的途徑日漸熱門，許多私立學校亦以此招攬生源，但實際上這些學校良莠不齊，其課程更可能完全不符合移民政策的要求，因此 SPP計劃中的公立學院是好得多的選擇，它們提供多種多樣的文憑或證書課程，比大學更注重職業性和實際操作，兼有帶薪實習課程(Co-op)，有利於就業。她認為，這對於有意移民的普通人，SPP計劃可能是個比技術移民或投資移民更可行的選擇。

How the Post-Graduate Work Permit Program Works

The Post-Graduation Work Permit (“PGWP“) allows students who have graduated from most Canadian public post-secondary institutions to stay and work in Canada upon graduation. As someone who remembers when I was in undergrad the frustration of international students who had to leave Canada upon graduating even though they would have jumped at the opportunity to stay, work, and pay taxes in Canada, it is certainly a welcome program.

PGWPs are open work permits. This means that international graduates who possess them can work for any employer. There is no restriction on the type of work that can be performed. Having said that, if a student wishes to work in health care or in education they will need to first obtain a medical exam. And, as with all work permits, PGWP holders are prohibited from working in the sex industry.

There is no requirement for a job offer prior to applying.

Eligibility

Outside of Quebec, in order for an international graduate to obtain a PGWP after graduating, an international student must:

have a valid study permit when applying for their PGWP;
have continuously studied full time in Canada, except for the final academic session, where part-time studies are permitted;
have completed and passed a program of study that is at least eight months in duration at either a public post-secondary institution, a private post-secondary institution that operates under the same rules and regulations as public institutions, or at a Canadian private institution if the student was enrolled in a program of study which led to a degree; and
apply for the work permit within 90 days of receiving written confirmation from their educational institution that they have met the requirements for completing their program of study.