Procedural Fairness Letters: What They Are and How Responses Work

What a fairness letter actually is

Under Canadian administrative law, a person affected by an immigration decision is generally owed a fair process. In practice, an officer who has a concern that is more than a gap in the paperwork, such as doubts about whether information is true or about a document, may write to the applicant before deciding. That message is what people call a procedural fairness letter.

For a visa or similar document, s. 11(1) of IRPA makes issuing a visa or other document depend on an examination, after which the officer must be satisfied on two points: that the person is not inadmissible and that the Act's requirements are met. An officer's concern on either point may be raised with the applicant in a letter before a decision is made.

A letter of this kind generally signals three things:

1. The officer has identified something specific rather than simply wanting more paperwork
2. The officer wants the applicant's answer before deciding
3. A decision has not yet been made on the file

The third point matters most. The reply is the applicant's opportunity to put facts and documents before the officer, and the quality of that reply can affect the file.

The deadline

A person who cannot meet the date may be able to ask the officer in writing for more time before it passes, but whether that is granted is up to the officer. A lawyer can advise on how to ask and what to say.

A short deadline also limits the time available to prepare the reply, and what the reply says may be hard to withdraw later.

What the letter is usually about

The concerns below are examples. The table is a general illustration, not a rule about what any officer will ask for.

If misrepresentation is alleged, the stakes are higher

Section 40 of the Immigration and Refugee Protection Act (IRPA) makes a permanent resident or a foreign national inadmissible for misrepresentation. Paragraph 40(1)(a) deals with misrepresenting or withholding "material facts," whether done directly or indirectly, where the result is, or could be, a mistake in how the Act is administered.

Section 40(2)(a) keeps the person inadmissible for five years. The clock starts at a final determination if it was made outside Canada, or at the day a removal order is enforced if the determination was made in Canada. Section 40(3) adds that a foreign national found inadmissible this way cannot apply for permanent resident status in that period.

Separately, s. 16(1) puts a duty of truthful answers on anyone applying under the Act, along with a duty to produce the relevant evidence and documents an officer reasonably requires. Whether an honest mistake, or a mistake by someone who helped prepare the application, affects a finding is a legal question that turns on the facts. When a letter alleges misrepresentation, many people speak to a lawyer before replying, because a reply that concedes something may be difficult to take back.

How responses are usually structured

This guide does not rely on an official template for replies. Replies commonly cover the following points:

1. Identifying the concern. Which statement, document or fact the letter is about, since the reply addresses that.
2. Attaching evidence. Each factual statement is stronger with a document behind it.
3. Explaining any error. Where something in the file is wrong, a plain account of how it happened is usually more useful than a general denial.
4. Dealing with materiality. For misrepresentation, the question is whether the fact was material, so a reply often explains why a point does or does not matter.
5. Adding legal submissions where they fit. A written legal argument is a different document from a personal letter.
6. Organising the package. A cover letter, numbered exhibits and an index make the material easier to review.
7. Responding in the way the letter specifies, with a record that it was sent.

What can weaken a response

• Feeling instead of evidence. A sincere account is not the same as verification.
• New inconsistencies. Statements may be compared with the existing file, so facts are worth confirming before they are written down.
• Answering questions nobody asked. Extra information can raise new concerns.
• Unsupported blame of a representative. If someone else prepared the application, that point generally needs documents behind it.
• No reply at all. What the officer then decides on depends on the file, and a lawyer can explain the possibilities.

What happens next

After the officer reviews the reply, several outcomes are possible:

• The concern is resolved and processing continues
• The application is refused, and where the ground is misrepresentation the consequences under s. 40 follow
• The officer asks for more information or arranges an interview

If an application is refused, the letter and the reply are part of the record. Under s. 72(1) of IRPA, a judicial review in the Federal Court begins with an application for leave. Section 72(2)(b) sets the filing time as 15 days when the matter arose in Canada and 60 days when it arose outside Canada, counted from the day the person receives notice of the matter or otherwise becomes aware of it. The Act also says an application for leave cannot be made until any right of appeal under the Act has been used up (s. 72(2)(a)), and that a judge may allow more time for special reasons (s. 72(2)(c)). Whether either point applies is something a lawyer can assess. A lawyer can also explain how the reply fits into any later challenge.