When Procedural Fairness Requires a Fairness Letter

Meurrens LawProvincial Nominee Programs, Study Permits, Work Permits

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. They do not have to seek clarification or additional documentation, nor provide an applicant with an opportunity to address concerns, when the material provided in support of an application is unclear, incomplete or insufficient to show that someone meets legislative program requirements.

Requirement to Put Best Foot Forward

In Owusu v Canada (Minister of Citizenship and Immigration), 2004 FCA 38 the Federal Court of Appeal put the principle differently, but in a way that is just as clear.  It stated that applicants have the onus of establishing the facts on which their claim rests, and that they omit pertinent information from their written submissions at their peril.

Gonzalez Vazquez v. Canada (Citizenship and Immigration), 2011 FC 1089 is a perfect example of how important that it is to be as thorough as possible.  There, an applicant wanted to convey in an Application to Immigrate to Canada for Humanitarian & Compassionate Considerations how detrimental removal would have been to her children.  To this effect, she had the child’s teacher write a letter.  The letter stated that:

[T]he same value is not placed on “safe and caring” schools, and children are often in danger of being harassed by others, or having their belongings stolen.  Would their children be a target?  It seems likely, since they have only known Canadian culture, and barely speak Spanish.

The immigration officer in rejecting the application considered this statement in the context in which it was made; the context that their inability to communicate in Spanish was likely to lead to harassment and their being targeted.  The officer read it as an anti-bullying argument. Apparently, the applicant had wanted to convey that the language issue would have an adverse impact on the childrens’ ability to have proper access to and reasonable success at school.  However, the letter did not clearly state this.

As the Federal Court noted, the applicants failed to raise the possible impact the children’s language deficiency in Spanish might have on their schooling and thus the officer was not required to consider it.  The Court also stated

Perhaps this was an oversight by the applicants or their counsel, or perhaps it was not mentioned because their fluency in Spanish is not as lacking as the one teacher believes.  In any event, the officer had to render a decision on the basis of the submissions and evidence placed before her by the applicants.

Applicants are entitled to rely on the submissions made by applicants and need not explore other possible issues that were not clearly and directly raised by them in their applications.  The message to individuals submitting applications is clear: be as thorough and concise as possible.

It is also important to note that applicants should not invite immigration officers to conduct further investigations by providing the contact information of potential references.  In Hui v. Canada, 2011 FC 1098, an applicant had presented to an immigration officer a list of numerous character references, and invited the officer to contact them.  He did not provide any actual reference letters to accompany the contact information.  Justice Barnes stated:

It was Mr. Hui’s obligation to present the strongest possible corroborating evidence.  Instead of marshalling meaningful evidence, he attempted to shift the evidentiary burden to the Visa Officer to conduct further enquiries.  Although it was perhaps not the most prudent statement for the Visa Officer to discount in advance the reliability of the sources Mr. Hui had identified, the fact remains that Mr. Hui had the obligation to produce that evidence.  He had no legal right to impose an investigative burden on the Visa Officer and the Visa Officer cannot be faulted for declining Mr. Hui’s invitation.

A fettering argument might have arisen if Mr. Hui had produced any significant corroborating evidence which was then rejected in a perfunctory way.

Credibility Concerns

A duty may exist, however, to provide an applicant with the opportunity to respond to a visa officer’s concerns when the officer is concerned with the credibility, the veracity, or the authenticity of the documentation provided by an applicant as opposed to the sufficiency of the evidence provided.

In Sandhu v. Canada (Citizenship and Immigration), 2010 FC 759,  for example, an application was complete.  However, the visa officer rejected the application because he did not believe the genuineness of one of the applicant’s answers on the application. The Court acknowledged that the duty of procedural fairness in the decisions of visa officers [is] at the low end of the spectrum. However, Justice Mandamin, the same Justice as above, also noted that where the application is adequate, but the officer nevertheless entertains a doubt on the evidence, there remains a duty to clarify the information. The judge thus allowed the judicial review.

Grewal v. Canada (Citizenship and Immigration), 2011 FC 167 provides another example of this principle. There, an application was rejected because of a poor IELTs score.  In brief, the applicant had arranged employment in Canada as a Retail Trade Manager, but the visa officer determined that she would be unable to perform the required duties  of the arranged employment because of her poor IELTS marks. The visa officer refused the application without providing the applicant with an opportunity to respond to this concern.

Justice Noel noted numerous factors that resulted in the officer having a duty to seek additional information from the applicant, including 1) that immigration guidelines specified that additional information would be required for doubts over Arranged Employment Offers, 2) that the language proficiency concern derailed the individual’s entire claim for permanent residence, and 3) that the applicant’s consultant had thoroughly explained the reason for the poor test and had stated that another would be forthcoming.  Accordingly, Justice Noel determined that procedural fairness dictated that a fairness letter or interview be provided.

Singh v. Canada, 2010 FC 1306 is another example.  There, an officer rejected a work permit application because the only documents which the applicant provided to support her claimed employment experience as a Ragi were reference letters.  The officer stated that she saw “many such letters which turn out to be fictitious”, and that she required “more than letters, for instance, newspaper cut outs, photos of them practicing or letters of reference, to properly corroborate claims of training, knowledge, and experience.”  The Federal Court, however, overturned this decision, noting that the applicant was not put on notice that the officer was concerned with the veracity of letters, and did not request further documentation.


In 2011, Justice O’Keefe in Kaur v. Canada, 2011 FC 219 provided  an excellent articulation of the current jurisprudence, and what should be the starting basis for any analysis of whether procedural fairness required the providing of the applicant with an opportunity to respond to a given concern.  The Court stated that:

An officer is not under a duty to inform the applicant about any concerns regarding the application which arise directly from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 F.C.R. 501 at paragraphs 23 and 24).

The onus was on the applicant to satisfy the officer of all parts of her application and the officer was under no obligation to ask for additional information where the applicant’s material was insufficient (see Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262 (F.C.T.D.), [1999] F.C.J. No. 1198 (QL) at paragraph 6).

However, the officer was obligated to inform the applicant of any concerns related to the veracity of documents that formed part of the application and the officer was required to make further inquires in such a situation (see Hassani above, at paragraph 24).

The message from the courts seems clear. Visa applicants have one shot, and they should ensure that the effort that they put forward is their best, because if they do, procedural fairness will require that immigration officers provide them with the opportunity to address concerns.

If they don’t put their best foot forward, however, then their applications will be rejected outright.