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 […]

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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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The Saskatchewan Queen’s Bench (the “Court“) in Kaberwal v. Saskatchewan (Economy), 2013 SKQB 244 has released a decision clarifying the procedural fairness owed by provincial nomination programs to immigration representatives accused of fraud.  To the best of my knowledge, it is the first decision on this issue. The Facts of the Case On December 31, 2012, Saskatchewan’s Ministry of Economy, Immigration Services (the “Ministry“) suspended an immigration consultant’s (the “Consultant“) right to submit applications to the Saskatchewan Immigration Nominee Program (“SINP“) for a period of two years.  SINP officials accused the […]

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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 […]

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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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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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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 […]

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The doctrine of legitimate expectations is a procedural doctrine which has its source in the common law. Because the doctrine of legitimate expectations is a common law principle, it does not create substantive rights.

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When Will a Hearing be Necessary at a PRRA Review

On August 4, 2010, the Federal Court released its decision in Sayed v. Canada (Citizenship and Immigration), 2010 FC 796 (“Sayed“) The decision involved a discussion of many Pre-Removal Risk Assessment (“PRRA“) issues, including when a PRRA officer will be required to call a hearing. The PRRA is based on the principle of non-refoulement, and provides that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life, or risk of cruel and unusual treatment or punishment.  Approved applications generally result in […]

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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 […]

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