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Understanding and Responding to a Procedural Fairness Letter - A Comprehensive Guide

A procedural fairness letter, also known as a right to be heard letter, is an important document issued by Immigration, Refugees and Citizenship Canada (IRCC). It is sent to applicants who are undergoing an immigration process, informing them of their rights to be treated fairly and given the opportunity to make their case. This letter is crucial for ensuring that all applicants have the opportunity to make a fair and equitable case for their application.

Procedural Fairness Letter

What it is a procedural fairness letter?

 

A procedural fairness letter is an email or letter sent electronically by an immigration officer. It is sent to allow a visa candidate the opportunity to respond to a concern about the documents that have been submitted in their visa application. The letter will inform the applicant of any concerns the immigration officer has and provide them with the chance to submit additional evidence or clarify any information before the visa decision is made. This process is known as procedural fairness and is designed to ensure that applicants are given the right to be heard and considered fairly before a decision is made.

Why is a procedural fairness letter - PFL issued?

Applicants have the right to a decision that is fair and impartial. The courts have stated that even the possibility or perception of bias must be avoided. 

When a decision affects an individual, that individual has the right to know the facts of the case and must be given a fair chance to respond.
The "right to be heard" requires that the applicant be informed of significant facts that are likely to affect the application's outcome. For example, if a decision-maker relies on extrinsic evidence (evidence obtained from sources other than the applicant), the applicant must be informed and given an opportunity to respond to such evidence.

To ensure that the applicant has a meaningful opportunity to participate, decision-makers must provide adequate notice of any process or interview that may result in a decision on their application, as well as a reasonable opportunity for the applicant to bring evidence or make arguments in support of their application. Decision-makers should inform applicants about any documents that may be required to address concerns. Interview invitation letters should include enough information to allow applicants to prepare. If any additional concerns arise during an interview, decision-makers should give the applicant an opportunity to address those concerns, either during the interview or afterward, via a procedural fairness letter.

The right to be heard does not always imply the right to an interview, though in some cases, an interview may be the best way to proceed. If an applicant is interviewed, he or she should be allowed to bring an interpreter or, in some cases, should be provided with one.

A Procedural Fairness Letter - PFL is issued so that the applicants: 

  • receive a fair and unbiased evaluation of their application

  • are made aware of the concerns that the assessing officer has;

  • are given a meaningful opportunity to respond to concerns about their application

Here are some examples of why a procedural fairness letter may be issued

  • Spousal Sponsorship - Genuineness of relationship or marriage of convenience under subsection 12(1) and subsection 4(1)

One of the most common reasons a couple may receive a PFL is when an assessing officer is not certain whether the couple meets the eligibility requirements of the spousal sponsorship application for a spouse, common-law partner or a conjugal partner. 

 

For example, your marriage is not recognized in Canada. You did not declare your or your partners' dependents on the application. You did not provide substantial proof of relationship. Another reason could be that you are presently not living inside Canada and have stated otherwise when applying for an inland spousal sponsorship. A major factor that contributes to receiving a PFL is the fact that you and your partner have not submitted enough proof of trying to cohabit if you are in a conjugal relationship and have applied for outland sponsorship.

 

  • Misrepresentation - subsection 40(1) of IRPA

40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

(c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or

(d) on ceasing to be a citizen under

(i) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force,

(ii) subsection 10(1) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act, or

(iii) subsection 10.1(3) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act.

Application

(2) The following provisions govern subsection (1):

(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

(b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

 

Section 40 applies to the following immigration applications whether they are made abroad, at a port of entry or from within Canada:

  • Applications for permanent residence

  • Applications for visas for permanent resident status

  • Applications for temporary residence

  • Applications for work and study permits, and for

  • Renewals and extensions of status

Under subsection 40(1) of IRPA, if IRCC believes the applicant was not accurate in their application, they may decide the applicant misrepresented themselves. This might happen if someone purposefully (or unintentionally) put inaccurate information on the forms or fake documents. Inadmissibility for Misrepresentation and a 5-year ban from Canada may occur from a simple failure to declare a prior visa refusal for the USA, Australia, or another nation on an application. When evaluating an application, IRCC occasionally errs on the side of caution. To avoid the application being rejected and being barred from Canada, this issue must be stated sufficiently.

  • Medical Inadmissibility - If IRCC determines that a person's medical condition will result in a disproportionate demand for health care or social service costs that exceed $20,517 CAD annually, the person may be deemed medically inadmissible to Canada. Due to the age of the elderly parents, this occurs frequently on applications for parental sponsorship and occasionally on other petitions for permanent residence. The Procedural Fairness Letter requires a proper response, as well as a secondary opinion or diagnoses, a medical plan, and other supporting documentation.

  • Criminal Inadmissibility - An applicant may be found to be criminally inadmissible to Canada if they have a criminal history from Canada or another country. This can prevent them (and other family members included in the application) from obtaining permanent resident status or a temporary resident visa, and the application may be rejected. People frequently are unaware that if one non-accompanying family member (such as a husband) has a medical or criminal concern, it could hinder the complete family (the other spouse and children) from acquiring permanent residence.

  • Express Entry or Skilled Immigration - IRCC may issue a PFL for an Express Entry application for a variety of reasons. Most problems stem from inadequate documentation of work experience (using the wrong NOC, employment letter not listing duties). Other explanations could be due to medical conditions, criminal activity, fabrications, or problems with dependents on the application (proving the relationship of spouse or children).

Why is a procedural fairness letter important?

A procedural fairness letter is an important communication tool used by Immigration, Refugees and Citizenship Canada (IRCC). It is sent to applicants when an officer detects an issue that may lead to a refusal but deems it necessary to put the applicant on notice of this specific concern. By providing a procedural fairness letter, IRCC is ensuring that all applicants are given an opportunity to explain their case, as well as to provide additional information or documents that could support their application. A procedural fairness letter is a crucial step in ensuring that the immigration process is fair and transparent for all applicants.

In a nutshell, a procedural fairness letter (PFL) is a final opportunity the visa officer has given you to clarify any concerns they might have regarding your application. If you do not respond to it properly, your application will most likely be refused.

How to respond to a procedural fairness letter?

Responding to a procedural fairness letter is essential for any application for immigration to Canada. The officer may give a specific amount of time, such as seven days or 30 days, to respond to the letter. It is important to take full advantage of this opportunity to address the officer’s concerns.

Here are some different elements/approaches to consider while preparing your response to the procedural fairness letter (PFL).

 

  1. Dispelling or refuting the officer's concerns - When you receive a PFL for misrepresentation, there is no room for error. At this point, the officer usually has enough evidence to support their decision for refusal. However, if you truly believe they are incorrect, present documentation to back up your claims. In most cases, the standard of proof is reasonable grounds to believe. As a result, please do your best to persuade the officer that their concerns are unfounded. However, maintain a professional and respectful demeanor at all times. DO NOT disrespect the officers knowledge and concerns.

  2. Accepting responsibility for your mistakes - Honesty is your best policy. Admit that you made mistakes and clarify why you did what you did (knowingly or unknowingly). However, don't expect a happy ending in these situations. When you agree with the officer's concerns in a procedural fairness letter, your best bet is to offer alternative options. Consider hiring a licensed practitioner to help you handle these issues professionally and truthfully.

  3. Withdrawing your application - Most of the time, a request to withdraw after getting a PFL is too late. The officer might not consider it. But the complexity of the case may make you decide to go this way. Rarely, they will agree to what you want and close your application. The information in your application will still be there, though. So, you'll have to address the problems in future applications. No matter what, be honest and forthcoming.

 

A properly composed response, which cites relevant laws and case precedents, and is supported by evidence, may help prevent the application from being refused. It may also increase the chances of success if an applicant seeks redress in venues such as the Federal Court.

Therefore, it is highly recommended to obtain advice from a qualified immigration professional in Canada before writing and responding to a procedural fairness letter. This will ensure that applicants provide an effective response that meets all the requirements of the Canadian immigration process.

FAQ's

Q: Who typically issues a Procedural Fairness Letter?

A: A Procedural Fairness Letter is typically issued by a government agency or a regulatory body. It is often used in immigration matters and is issued when the decision-making authority is considering a negative decision based on information that the applicant may not be aware of.

 

Q: When can one expect to receive a Procedural Fairness Letter?
 

A: A Procedural Fairness Letter is usually sent when the decision-making authority has concerns about an application or a case, and the applicant or the person involved is given an opportunity to respond to these concerns before a final decision is made.

 

Q: What should be included in the response to a Procedural Fairness Letter?

A: The response to a Procedural Fairness Letter should address all the concerns raised in the letter. It should provide detailed and factual information, and may include supporting documents or evidence to substantiate the claims made in the response.

Q: How long does one have to respond to a Procedural Fairness Letter?

A: The time to respond to a Procedural Fairness Letter can vary depending on the issuing authority and the nature of the case. However, it is generally a short period, often around 30 days.

Q: What happens if one does not respond to a Procedural Fairness Letter?


A: If a Procedural Fairness Letter is not responded to within the given time frame, the decision-making authority may proceed with making a decision based on the information they have, which could potentially be unfavorable.

Q: Can a Procedural Fairness Letter be challenged?

A: A Procedural Fairness Letter itself cannot be challenged as it is not a decision but a part of the decision-making process. However, the final decision made after the response to the letter can be challenged or appealed.

Q: Is it necessary to hire a lawyer to respond to a Procedural Fairness Letter?


A: While it's not mandatory to hire a lawyer to respond to a Procedural Fairness Letter, it can be beneficial due to the legal complexities involved. A lawyer can help articulate a response that adequately addresses the concerns raised in the letter.

Q: Can a Procedural Fairness Letter be issued more than once in a case?


A: Yes, a Procedural Fairness Letter can be issued more than once in a case if new concerns arise during the decision-making process that the applicant needs to be made aware of and respond to.

Q: What is the purpose of a Procedural Fairness Letter?


A: The purpose of a Procedural Fairness Letter is to ensure that the decision-making process is transparent and fair. It gives the person involved an opportunity to respond to any concerns or adverse information that may affect the outcome of their case.

Q: What should one do upon receiving a Procedural Fairness Letter?


A: Upon receiving a Procedural Fairness Letter, one should carefully review the concerns raised in the letter, gather any necessary information or documents, and prepare a detailed response addressing each concern. It is also advisable to seek legal advice if needed.

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