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Procedural Fairness Response

If you are in a situation where IRCC has sent you a Procedural Fairness Letter (PFL), it is important you seek professional help to submit a detailed response with strong factual arguments.

Decision-makers are required to follow the rules of procedural fairness throughout the decision-making process.

Procedural fairness requires that applicants:

  • be provided with a fair and unbiased assessment of their application
  • be informed of the decision-maker’s concerns and
  • have a meaningful opportunity to provide a response to concerns about their application

The requirement for procedural fairness applies to all types of immigration and citizenship applications and all aspects of decision-making.

The following are the primary elements of procedural fairness:

Processing Without Undue Delay

Applications should not be subject to unnecessary delays. A delay that cannot be justified is a denial of procedural fairness.

The Right To Fair And Impartial Decision-Making

Applicants have the right to have a fair and impartial decision-maker. The courts have indicated that it is necessary to avoid even the possibility or perception of bias.

Examples of situations of bias, or the perception of bias, may include:

  • judging a matter before it is heard
  • prejudicial attitude
  • previous involvement in a case
  • a relationship between the decision-maker and one of the interested parties (e.g. a financial interest) etc.

The Applicant’s Right To Be Heard

When an individual will be affected by a decision, that individual has the right to know the case to be met and must be given a fair opportunity to respond.

The “right to be heard” requires that the applicant is advised of significant facts that are likely to affect the outcome of the application. For example, if a decision-maker relies on extrinsic evidence (i.e. evidence received from sources other than the applicant), they must advise the applicant of this and give the applicant an opportunity to respond to such evidence.

To ensure that the applicant has a meaningful opportunity to participate, decision-makers must give sufficient notice about any process or interview that could result in a decision on their application and must give the applicant a reasonable opportunity to bring evidence or make arguments supporting their application. Decision-makers should tell applicants which documents may be required in order to address concerns. Sufficient information should be included on interview invitation letters to allow applicants to prepare. If any additional concerns arise from an interview, decision-makers should provide the applicant with an opportunity to address those concerns either at the interview or subsequent to the interview, through a procedural fairness letter.

The right to be heard does not necessarily include the right to an interview although in some cases, an interview may be the most appropriate way to proceed. If an applicant is interviewed the applicant should be allowed to bring an interpreter, or, in certain circumstances, should be provided with an interpreter.

The right to be heard requires that an applicant be given a meaningful opportunity to take part in the process. This requirement also applies in regard to information received from third parties, including IRCC partners. While this does not mean that the decision-maker must provide the physical documents consulted during the decision-making process (El Maghraoui, 2013 FC 883), there is a requirement that the essence of the decision-maker’s concerns be communicated to the applicant (Krishnamoorthy, 2011 FC 1342) and that the applicant is advised of the specific provisions of the Act at issue. What is important is that the decision-maker’s concerns are adequately communicated to the applicant, who must then be given a reasonable opportunity to respond.

Whoever Hears Must Decide

The person who hears the case is the one who should make the final determination.

“Hear” in this context does not mean interview. It means that the person with the legal authority to make a decision must assess the information provided and make a decision. The Act, the Regulations and various delegation instruments are specific about who has authority to make decisions.

When decision-makers use their decision-making authority, they assess information in the context of the applicable legislation. If a decision-maker is the only person who looks at information or deals with applicants, it is clear that they “heard” and decided. However, during processing, different persons may work on a particular application. It is therefore important, that all documents provided by an applicant are put on the record (either the electronic record or the paper file) for consideration by the decision-maker. The record of decision must also show that the decision-maker weighed all relevant factors, including all submissions by the applicant, and that they made their own decision based on the merits of the application.

If a decision is based on subjective assessments (e.g. credibility), then it must be clear on the record that the decision-maker made the assessment. The decision-maker should not rely on someone else’s subjective assessment; they must make the decision themselves based on complete information, and must give factual and objective reasons for their decision.

In some circumstances, responsibility for the application may be transferred to a different decision-maker. The new decision-maker must ensure that all the information on file is assessed and it must be clear in the notes that this has been done. When a file has been transferred to a different decision-maker, it may be necessary to send a new procedural fairness letter or even to interview the applicant again, particularly if subjective assessments had been made by the previous decision-maker that are relevant to the final decision on the application.

Finally, the requirement that the person who hears must decide, does not prevent a decision-maker from seeking advice before making a final decision, however, the record of decision should indicate that, after assessing all relevant factors, the decision-maker came to their own conclusion. Advice received from a manager, from headquarters or from a procedures manual can be used by the decision-maker as guidance in applying the applicable provisions of the Act and Regulations to the facts of the specific application. If a decision-maker makes a decision because of direction by a manager, headquarters or a procedures manual, they restrain, or “fetter”, their discretion.

The following are examples of how to proceed in situations in which the original decision maker is not available to finalize a case:

  • Application has been assessed and it is clear from the notes that a negative decision has been made, however, the decision-maker is no longer available to send the refusal letter:
  • Another person with the same level of delegated authority can send the refusal letter. The person sending the letter does not take ownership of the decision and should refer to the finding of the actual decision-maker in the refusal letter. Enter a note in the GCMS saying that this was done.
  • Applicant was interviewed and the decision-maker made a credibility finding, however, the decision-maker is no longer available to finalize the assessment of the application:
  • Before making a decision the new decision-maker must make their own assessment of the application and may need to either re-interview the applicant or send a procedural fairness letter explaining their concerns. The case notes must reflect that the decision-maker reached their own conclusions after a full assessment of the file.
  • Applicant was interviewed but the interview was mainly fact finding. A new decision-maker takes over the assessment of the application:
  • A decision can be made on facts gathered by another person unless the decision-maker has concerns which can only be addressed by an interview or a procedural fairness letter.

Legitimate Expectation

When a person has been assured that a particular procedure will be followed, the individual is entitled to that procedure. For example, if an applicant has been given 30 days to provide certain documentation, a negative decision should not be made before the end of the 30 day period even if some documentation has been received.

Decisions Must Be Based On The Immigration And Refugee Protection Act (IRPA) And Regulations (IRPR)

The provision of the Act or Regulations must be cited in the record of a refusal. All communications to the applicant, including refusal letters, should refer to the appropriate legislative provision(s).

The Right To Reasons

The applicant has the right to understand the basis of the decision made on the application. The reasons, which should be provided in writing, must be clear, precise and understandable. When the applicant has a right to make an appeal to the IAD or to seek judicial review at the Federal Court, the applicant must have sufficient information to prepare their submissions. The reasons provided to the applicant should reflect the assessment of the facts and evidence relied upon, the provision(s) of the Act and/or Regulations on which the decision is grounded and the reasoning for the conclusion reached by the decision-maker.

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