Procedural Fairness, Ineligibility/Inadmissibility, and Remedies for Refused Cases

• Author: Stephen Green/Alexandra Cole/Peter Salerno/Cristina Guida
• Pages: 325-376

325

7

Procedural Fairness,

Ineligibility/

Inadmissibility,

and Remedies

forRefusedCases

I. Introduction ............................................. 326

II. Procedural Fairness ....................................... 326

III. Refusal of an Application for Work Authorization ................ 329

IV. Remedies for Refusals ..................................... 336

V. Inadmissibility and Temporary Resident Permit ................. 348

VI. Consequences of Non-Compliance with the Terms and Conditions

ofaWorkPermit .......................................... 365

© [2021] Emond Montgomery Publications. All Rights Reserved.

326 Temporary Entry into the Canadian Labour Market

I. Introduction

As noted in the earlier chapters, foreign nationals who apply for work authorization

must include in their application evidence that substantiates their temporary inten-

tion, their eligibility for the particular work permit or work-permit-exempt category

under which they are applying, and their admissibility. In other words, an application

will be refused unless the decision-maker is satisfied that the applicant meets the

requirements of the Immigration and Refugee Protection Act1 and is not inadmissible to

Canada.2

This chapter addresses procedural fairness rules that govern the processing of an

application, in addition to inadmissibility, remedies for refused applications, and con-

sequences of non-compliance with the terms and conditions of a work permit.

II. Procedural Fairness

As with all types of applications, during the processing of an application for work au-

thorization, decision-makers are required to follow the rules of procedural fairness.

The Federal Court of Canada has consistently stated that the principles of proced-

ural fairness and natural justice apply to immigration processing. Decision-makers are

therefore required to, for example:

• process applications without undue delay;

• inform applicants of unforeseen factors that are likely to negatively affect the

outcome of their application; and

• provide clear, precise, and understandable reasons for their decision.

A. Undue Delay

Although the law does not set out specific timelines for rendering a decision on an

application, decision-makers should not subject applications to unnecessary process-

ing delays. Thus, if a decision-maker does not render a decision within a “reasonable”

period of time, and the delay cannot be justified, a breach of procedural fairness will

have occurred.

What constitutes undue delay is highly contextual and case-specific. In the event

that the processing of an application is extended for a period of time, the applicant

should first request an update from the respective Canadian consulate, high com-

mission, or embassy, or an Immigration, Refugees and Citizenship Canada (IRCC)

office inside Canada that is responsible for processing their application. Applicants

or their representatives may also use the IRCC Webform to request an update from

1 SC 2001, c27 [IRPA].

2 IRPA, s11(1); Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR],

ss200(1)(b), (c).

© [2021] Emond Montgomery Publications. All Rights Reserved.

Chapter 7 Procedural Fairness, Ineligibility/Inadmissibility, and Remedies 327

IRCC.3 If the applicant is not informed of a reasonable justification for the delay, and

the processing time has significantly exceeded the standard processing times listed

on the IRCC website,4 the applicant should only then consider seeking relief from the

Federal Court in the form of an application for leave and judicial review (see below

in this chapter, under Section IV.B, “Application for Leave and Judicial Review—

Federal Court of Canada”).

The Federal Court has the authority to issue a writ of mandamus to compel the visa

office to finalize the processing and decide whether to approve or refuse the appli-

cation. However, as noted above, applicants should be mindful that the assessment

of whether there has been a breach of procedural fairness for undue delay is highly

contextual and case-specific. The Federal Court will intervene in the government’s

processing of the application only if it is clear certain conditions have been satisfied.5

As a result, it is best practice to make multiple documented attempts to communicate

with IRCC regarding the delayed application before resorting to the Federal Court. A

review of the case law with regard to mandamus can provide valuable feedback as to

when the Court might find delays to be unreasonable.

B. Right to Be Heard

Procedural fairness also requires decision-makers to inform applicants of significant

unforeseen factors that are likely to affect the outcome of the applicant’s application.

An applicant’s right to be given the opportunity to disabuse an officer of concerns

before a decision is rendered on the application should be proportionate to the com-

plexity and nature of the application. Indeed, in some cases, an applicant is owed very

little procedural fairness, whereas in others, an applicant is owed a great deal.

The Federal Court has held that procedural fairness owed by visa officers, specif-

ically, is on the low end of the spectrum.6 However, applicants should still be given

an opportunity to address a visa officer’s concerns regarding credibility.7 Moreover,

if a decision-maker has concerns about the veracity of a document submitted by the

applicant or considers extrinsic evidence that is prejudicial toward the applicant, the

3 IRCC, “IRCC Webform” (last modified 14 November 2018), online: Government of Canada

<https://secure.cic.gc.ca/enquiries-renseignements/canada-case-cas-eng.aspx>.

4 IRCC, “Check Processing Times” (last modified 20 November 2020), online: Government of

Canada <https://www.canada.ca/en/immigration-refugees-citizenship/services/application/

check-processing-times.html>.

5 Vaziri v Canada (Minister of Citizenship and Immigration), 2006 FC 1159 at para 38; Dhillon v

Canada (Citizenship and Immigration), 2019 FC 391 at para 18.

6 Asl v Canada (Citizenship and Immigration), 2016 FC 1006 at para 23.

7 Hafiz v Canada (Citizenship and Immigration), 2018 FC 1273 at para 25.

© [2021] Emond Montgomery Publications. All Rights Reserved.