September 9, 2016

Procedural Fairness: One Letter is not Always Enough

A recent Federal Court decision overturned a decision denying an applicant’s application for permanent residence under the Federal Skilled Worker category for misrepresentation.

In Islam v. Canada, the applicant applied based on their skilled work experience as an information systems analyst and consultant. He submitted numerous documents in support of his work experience. However, he failed to declare on his application form that he had used the services of an unauthorized agent to assist with certain aspects of his application.

The Visa Office in Singapore issued a procedural fairness letter indicating that the applicant may not meet the requirements for immigration on the basis of having contracted the unauthorized agent. This issue led to concerns that the employment references provided by the applicant were not genuine and that he could therefore be inadmissible for misrepresentation.

The applicant responded with additional proof of employment and explained that he used the address of the unauthorized representative in order to assist with language and educational credential evaluations and for ease of mailing. However, the Visa Office, unsatisfied with the response, refused the application without an interview.

The Federal Court overturned the decision of the visa officer, holding that the officer’s assessment of all of the employment evidence on file was unreasonable. Further, the Visa Office was found to have breached the applicant’s right to procedural fairness: In light of the explanations provided by the applicant, the fact that an unauthorized representative was used was determined to be insufficient to justify a finding that his employment documentation was not genuine.

Thus, despite the issuance of a procedural fairness letter, the Honourable Mr. Justice Manson found that the Applicant was not provided a meaningful opportunity to respond to credibility concerns with respect to his file and allowed the application for judicial review.

For more information on Federal Court Applications and Appeals, please click here.

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