The Procedural Fairness Letter

The lawyers at this office are often called upon to respond to Procedural Fairness Letters -letters sent by Officers after there is a concern regarding the completeness/truthfulness/inadmissibility.

As with many things in life, prevention is the best medicine. Applications should be complete and potential concerns should be dealt with (if possible) in advance.

Applicants should not assume that they will get the benefit of a Procedural Fairness letter or another opportunity to remedy a deficient application!

Justice Gascon discussed/reviewed when an Officer is obliged to provide a PFL or PF opportunity in a somewhat recent case (Penez 2017 FC 1001):

[35] It is well-recognized that the onus is on visa applicants to put together applications that are convincing, and that anticipate adverse inferences contained in the evidence and address them; procedural fairness does not arise whenever an officer has concerns that an applicant could not have reasonably anticipated (Singh v Canada (Citizenship and Immigration), 2012 FC 526 at para 52).

[36] Furthermore, the nature and scope of the duty of procedural fairness are flexible and will vary depending on the attributes of the administrative tribunal and its enabling statute, the specific context and the various factual situations dealt with by the administrative body, as well as the nature of the disputes it must resolve (Baker at paras 25-26; Varadi v Canada (Attorney General), 2017 FC 155 at paras 51-52). The level and the content of the duty of procedural fairness are determined
according to the context of each case. Its purpose is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully, and to have them considered by the decision-maker (Baker at paras 21-22). It is well accepted that applicants for a study permit are owed a degree of procedural fairness that falls at the low end of the spectrum. Procedural fairness owed to a student permit applicant has been described as “relaxed” (Duc Tran v Canada (Minister of Citizenship and Immigration), 2006 FC 1377 at para 2).

[37] Visa officers are therefore generally not required to provide applicants with opportunities to clarify or further explain their applications (Onyeka v Canada (Citizenship and Immigration), 2009 FC 336 at para 57). The onus remains on applicants to provide all the necessary information to support their application, not on the Officer to seek it out (Ismaili v Canada (Citizenship and Immigration), 2012 FC 351 at para 18; Singh v Canada (Citizenship and Immigration), 2010 FC 212 at para 11; Arango v Canada (Citizenship and Immigration), 2010 FC 424 at para 15). Indeed, it is well-established that the Officer had no legal obligation to seek out explanations or more ample information to assuage concerns relating to Ms. Penez’s study permit application by way of a ‘Procedural Fairness Letter’ or any other means (Solopova at para 38; Mazumder v Canada (Minister of Citizenship and Immigration), 2005 FC 444 at para 14; Kumari v Canada (Minister of Citizenship and Immigration), 2003 FC 1424 at para 7). Imposing such an obligation on a visa officer would amount to giving advance notice of a negative decision, which has been rejected by this Court on many occasions (Dhillon v Canada (Citizenship and Immigration), [1998] FCJ No 574 (QL) at paras 3-4; Ahmed v Canada (Citizenship and Immigration), [1997] FCJ No 940 (QL) at para 8).