PROCEDURAL FAIRNESS SERIES (3): SOURCE OF INFORMATION

Procedural fairness is the opportunity for the visa officer to give the applicant an explanation, so that the applicant can dispel the concerns of the visa officer. However, it is not in any case that the visa officer needs to give the applicant an opportunity to explain. The information that is directly reflected in the materials used by the visa officer is refused. For example, if the applicant for the federal skilled immigrants finds that the score is not enough 67 and refuses to sign, there is no need to give any explanation. This principle is summarized in the case of Hassani v. Canada, 2006 FC 1283.

…it is clear that where a concern arises directly from the requirements of the legislation or related regulations, a visa officer will not under under duty to provide an opportunity for the applicant to address his or her concerns. Where however the issue is not one That arises in this context, such a duty may arise. This is often the case where the credibility, accuracy or genuine nature of information submitted by the applicant in support of their application is the basis of the visa officer’s concern…

The three most common situations that need to be explained are: (1) the visa officer uses the model and general reasons to refuse the applicant, and (2) the visa officer obtains the information refusal from the third-party channel that the applicant does not know and (3) The visa officer refused to sign the suspicion of the applicant’s credit.

Modeling and general reasons

To put it simply, the visa officer can’t open a “map cannon”, a chance to overturn a group of people without explaining the opportunity to the applicant. This principle is more clearly stated in Hernandez Bonilla v. Canada, 2007 FC 20 and is also heavily quoted in later jurisprudence.
In this case, the applicant Luz Marina Hernandez Bonilla is a 16-year-old Colombian citizen who wants to go to Canada for four years of high school. The visa officer believes that applicants who go to Canada for a four-year book at the age of “formation” will cause the applicant to be out of touch with Colombian family, society, language, etc., and cannot adapt after returning, so because they do not believe that the applicant will finish studying in Canada. And refused to sign.
The judge approved the judicial review, the main points are as follows:

[26] It is my opinion that the visa officer relied upon a generalization when he refused the applicant’s application. The generalization in question is that all applicants who apply for study permits which cover four years of high school should be denied, since they would automatically Be unlikely to return to their home countries due to long-term separation from their families and cultures. Clearly, any individual who applies to study in Canada for four years of high school would be away from the aspects of their home country noted by the visa However, it is not the case that all young people in these circumstances would become unable to function in their home countries following a four year period of study in Canada, and as a result, would be unlikely to leave Canada.

[27] This is not a case in which the applicant’s application itself was incomplete, but a situation where the officer subjectively formed an opinion that the applicant would not return to Colombia following the completion of her studies. In my view, the officer in this The applicant had have allowed the applicant an opportunity to respond to his concerns. The applicant had no way of knowing that the visa officer would act upon his view that those in their “formative years” may not study in Canada for a four year period, since The visa officer’s failure to give the applicant an opportunity to respond to his concerns, on the facts of this case, amounted to a breach of the rules of natural justice. The application for judicial review is therefore Allowed and the matter is referred to a different visa officer for redetermination.

This case is a lot of panacea used to refute immigration authorities when appealed by an applicant who refused to sign.

Information obtained by third-party channels

If the visa officer obtains information from a third party and refuses to sign the applicant based on this information, then the applicant must be given an opportunity to explain. This principle is cited and reaffirmed by a large number of court cases and forms the cornerstone of procedural fairness.
Let’s take a look at the following textbook-style violation of procedure fairness. In the case of Wu v. Canada, 2013 FC 838, the visa officer called the applicant’s employer to ask for responsibilities, and then concluded that the applicant’s duties did not meet the NOC definition. The 1112 was thus refused. The judge’s opinion is as follows.

[15] Where an officer has access to information of which the applicant is unaware, the applicant should be given an opportunity to disabuse the officer of any concerns arising from that evidence. Neither the existence nor the content of this call were disclosed to the applicant Indeed, the officer’s letter misleadingly omits any mention of the call, giving the applicant the untrue impression her application had been determined individual based on the record she submitted. It was only upon the disclosure of the certified tribunal record in this proceeding that the applicant Learned of the existence of the call and the officer’s reliance upon it.

[16] Given that an applicant must decide whether to pursue the costly step of initiating an application for judicial review before gaining access to the certified tribunal record, I would appeal visa officers to be transparent with an applicant about the reasons for refusing an application.

[17] This is a textbook example of a violation of the duty of fairness. I need not decide the third issue. The application for judicial review is granted and the matter should be returned to Citizenship and Immigration Canada for redetermination.

Suspected applicant credit

If the visa officer does not trust the applicant, for example, if the applicant’s materials are suspected to be false, it is usually necessary to give an explanation.
The visa officer likes to use this refusal: “The bank certificate/work certificate is printed on a low-quality paper.” This reason appears in the refusal of approximately 1/4 of the refusal of the refusal of the transfer business.
If the visa officer suspects that the applicant’s bank certificate/work certificate is false, the visa officer should give the applicant an opportunity to explain, otherwise the procedure is fair.
What kind of problem is “integrity problem”, different judges have different understandings. In the case of Ransanz v. Canada, 2015 FC 1109, the visa officer did not believe that the applicant would reside in the nominated Quebec and suspected that the applicant went to Quebec to find a house to find the school in response to the upcoming interview. The judge thought this It is doubtful that the applicant’s integrity should be given an opportunity to explain.

[34] Finally, I find that a credibility issue was raised with respect to the suggestion by the respondent’s counsel that the research into real estate and schools in Montreal was only undertaken in anticipation of the in-person interview. If the Officer suspected that the Applicant’s wife’s recent trip to Montreal had only taken place because the applicant was aware of his upcoming interview, as the respondent implies before this Court, the Officer should have raised this concern and given the applicant an opportunity to respond during the interview, as this issuedirectly went to the applicant’s credibility…

However, in the case of Kamchibekov v. Canada, 2011 FC 1411, the applicant was not so lucky. The applicant’s employer’s recommendation letter copied the immigration’s definition of NOC. The immigration office considered that the visa officer’s refusal decision was not to doubt the applicant’s integrity, but because the duty of copying the NOC was not sufficient for the visa officer to determine whether the applicant’s real work was What, the judge actually adopted this statement. Once it is determined that the applicant’s materials are insufficiently prepared, they can directly refuse the visa and do not give an explanation.