Procedural Fairness Letter on Visa, Study Permit, Work Permit, PR Applications
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.
