Immigration Corner | What is a procedural fairness letter?

Dear Ms Powell,

My stepdad applied to sponsor me. After two years of silence, l received a procedural fairness letter stating the application will be refused because of the act. I don’t understand this letter. Can you tell me what this is about? Are they saying we have used the wrong procedure. I look forward to your response in The Gleaner.

GB

Dear GB,

A procedural fairness letter is a critical letter that is usually issued by Immigration, Refugee and Citizenship Canada (IRCC) in cases where there seems to be inconsistencies, anomalies, or incomplete information. It means that IRCC is granting you an opportunity to be heard before a final decision is made on your case.

In administrative law, it means that an individual has the right to be told if there are certain issues affecting the application, and the applicant is granted the opportunity to ‘make his case’. In other words, the letter gives you an opportunity to provide a more detailed account of your case and a chance to address issues that are highlighted in the letter.

The officer is required to give you a fair and unbiased assessment of your case, provide you with a list of concerns, and give you an opportunity to respond, usually within 30-60 days, to address the items of concern and provide clarification or additional documents to substantiate your case.

RIGHT TO BE HEARD

This is an important letter which you should not ignore, as if you do, the officer will be left with no alternative but to assume the worst, or proceed with the evidence before them.

You did not state the issues of concern, or the sections of the act that was contravened. However, in my experience, procedural fairness letters are issued when there appears to be misrepresentation, conflicting information, questions about the nature of a relationship, medical, or criminal inadmissibility, missing information or documentation, or simply that the application should have been made under a different programme.

An applicant has a right to be heard. Therefore, the letter usually outlines the factors that have negatively impacted your application. The specific sections of the act should be cited in the letter. If they have evidence contrary to what has been presented, they should give you an opportunity to respond to such evidence. In some cases, the officer may request your response in writing, or invite you to an interview to address the concerns. If it just a matter of presenting additional information that you have, then you just need to present the information and provide an explanation, or not providing the document at the beginning.

You should not underestimate the importance of providing a wholesome response when given an occasion to do so. I strongly recommend that you retain an immigration lawyer immediately to assist you with preparing a response. On your authorisation, the lawyer will prepare arguments and present the evidence to support your case. An experienced lawyer may even be able to anticipate potential problems which may flow from the questions and will be able to address these concerns at the same time, or provide you with other options.

Once a decision is made, you have a right to be provided with a response in writing. The officer must provide a reason for the decision, based on the issues, facts and evidence. The officer is also obliged to state the specific provisions in the act or regulations relied on.

If your application is denied, your stepdad may have a right to appeal to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada to seek judicial review. IAD is responsible for hearing appeals on sponsorship applications and other decisions. You, as the person being sponsored, will not be able to bring the appeal, as only Canadian citizens and permanent residents whose applications to sponsor close family members have been refused will have access to the tribunal.

Deidre S. Powell is a lawyer, mediator and notary public in Canada. Submit your questions via www.deidrepowell.com. You may also request your personal consultation via Zoom/Teams/Skype or WhatsApp by emailing info@deidrepowell.com.