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 that legal representatives will not interfere with the examination process.

 » Read more about: The Right to Counsel at the Port of Entry  »

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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 Consultant of fabricating job offers for employers who informed SINP that they never saw or signed the job offers that the Consultant submitted to SINP without their knowledge.

The Ministry sent the Consultant a letter which, amongst other things, stated the following:

We have reviewed seven job offers from Saskarc Industries that you submitted on behalf of seven applicants that have you listed as the third party representative. Part of the review of the application includes verifying the validity of the documents and information included in the application. As a representative, you have signed and agreed to the Saskatchewan Immigrant Nominee Program (SINP)’s Code of Conduct for Representatives which states that you will provide truthful, accurate and complete information to the SINP and that you will be personally accountable to the SINP for all aspects of the application.

Our view of job offers from Saskarc Industries Inc. included contacting the company to confirm their validity. Our conversations with Saskarc revealed that they did not issue these seven job offers and they are not written in their standard format. Furthermore, they have indicated that these job offers are fraudulent.

….

We would like to give you an opportunity to respond to this information.

 » Read more about: Procedural Fairness Owed by Provincial Nomination Programs to “Fraudulent” Consultants  »

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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 generally requires that the applicant be given the opportunity to address the concern.

Examples from Jurisprudence

Farooq v. Canada, 2013 FC 164 (“Farooq“) is a useful example of how to distinguish a refusal based on credibility concerns vs. one of insufficient evidence. There, IRCC’s refusal letter stated:

He claims he worked from January 2005 to August 2006 as software developer and from 2006 to present as manager (software development) for Tricastmedia PVT Ltd in Lahore Pakistan. Such rapid promotion is not credible as computer and information systems managers normally require several years of experience in systems analysis, data administration software engineering, network design or computer programming, including supervisory experience. Some of the duties in his employment letter repeat verbatim the duties of NOC 0213 which raises the question of the credibility of that employment letter. The other duties are similar to those of information systems analysts and consultants (NOC Code 2171).

Although the NOC Code 0213 corresponds to an occupation specified in the instructions, the information submitted to support this application is insufficient to substantiate that applicant meets the occupational description and/or a substantial number of the main duties of NOC 0213.

 » Read more about: Procedural Fairness Where Credibility is an Issue  »

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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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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 simply did not know how to respond appropriately.

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 you to provide detailed information as to what you were doing from 1996-1997, then 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.  This was actually a case that I successfully argued in Federal Court, and so am quite familiar with the legal principles involved.

As 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,

 » Read more about: Responding to Procedural Fairness Letters  »

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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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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 the same refugee protection afforded to persons whose refugee claims are approved by the Immigration and Refugee Board.

PRRA is generally carried out through a paper review process. However, officers have the discretion to hold an oral hearing in certain cases, as outlined in s. 167 of the Regulations. This section states that:

Hearing — prescribed factors

167. For the purpose of determining whether a hearing is required under paragraph 113(b) of the Act, the factors are the following:

(a) whether there is evidence that raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 and 97 of the Act;

(b) whether the evidence is central to the decision with respect to the application for protection; and

(c) whether the evidence, if accepted, would justify allowing the application for protection.

In Sayed, Justice Zinn noted that in the context of PRRA applications following negative refugee determinations, the test of whether to hold an oral interview is that where the testimony of the applicant, if believed, would adequately address the determinative issues raised by the Board in rejecting the applicant’s refugee claim,

 » Read more about: When Will a Hearing be Necessary at a PRRA Review  »

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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 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.

 » Read more about: When Procedural Fairness Requires a Fairness Letter  »

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