Last updated on August 6th, 2020
Last Updated on August 6, 2020 by Steven Meurrens
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. This requirement has arisen from Federal Court of Canada jurisprudence which provides that the duty of procedural fairness can require that an applicant be given an opportunity to respond to a decision maker’s concerns when those concerns go beyond simply whether the legislation or related requirements are met on the face of the application. When, for example, the applicant may be unaware of the existence or the basis of the concern, procedural fairness may require prior notice of the concern before a decision is made so that the applicant has an opportunity to try to disabuse the officer of the concern. As the Court noted in Kaur v. Canada (Citizenship and Immigration), 2020 FC 809, this is the case for both temporary and permanent residency applications.
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. As well, the fault may lie with the visa officer if the procedural fairness letter was insufficient.
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 an applicant to provide detailed information as to what they were doing from 1996-1997, then they should 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. 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.
As Justice Diner noted in Akhtar v. Canada (Citizenship and Immigration), 2019 FC 123, this is based on the latin principle expressio unius est exclusio alterius, which means “when one or more things of a class are expressly mentioned others of the same class are excluded.” In that case, Justice Diner ruled that it was a breach of procedural fairness for an officer to ask an applicant to address eight specific points about his application only to then refuse the application on an unraised ninth point.
Finally, if an applicant is unable to include all the information that they require in a response to a fairness letter, but they would like to submit missing information a short period later, then applicant should make sure that their first response indicates that there is more information coming. For example, if IRCC requests five documents, and the applicant only provide three, it is important to indicate that the other two documents will be provided shortly, and by when.