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Procedural Fairness

Procedural Fairness

Procedural Fairness

The concept of procedural fairness comes from two principles of law. One is that the decision-maker should not judge their own case, and two, the decision-maker should listen to both sides before making a decision. Procedural fairness is focused on the fairness of the process and not whether the outcome of the decision was fair. If the process is seen as unfair, you can apply to the court to review the decision.

The authorities are required by law to follow the rules of the procedure and remain fair right through the decision-making process. Procedural fairness requires the following:

  • The applicant must be provided with an unbiased and fair assessment of their application
  • They must be informed of the concerns of the authorities
  • They must be provided a fair chance to respond to the concerns raised by the authorities

Procedural fairness applies to immigration and citizenship applications of all types.

The primary elements of procedural fairness are:

  • Processing Without Undue Delay
  • The Right To Fair And Impartial Decision-Making
  • The Applicant’s Right To Be Heard
  • Whoever Hears Must Decide
  • Legitimate Expectation
  • Decisions Must Be Based On The Immigration And Refugee Protection Act (IRPA) And Regulations (IRPR)
  • The Right To Reasons

Processing Without Undue Delay

All applications must be processed within a reasonable time frame. There should not be any unnecessary delays. An unexplained or unjustifiable delay is deemed as a rejection of procedural fairness.

The Right to Fair and Impartial Decisions

All applicants must enjoy the right to a fair and impartial decision. There must not be even a perception of bias according to the courts. Some examples of bias or its perception:

  • Pre-judging a matter even before it is heard
  • Pre-judicial approach
  • Any previous involvement in a case
  • Existence of a relationship between the decision-maker and one of the relevant parties

The Applicant’s Right to Be Heard

An applicant has every right to be heard if they are affected by an adverse decision. They have a right to know what and how the decision was made. They must also get a fair chance to respond and place their viewpoint.

The applicant must be advised of the facts of the case that can impact the outcome of the application. For instance, if the decision-maker relies on some facts and evidence sourced extrinsically, the same must be informed to the applicant. They must be given a fair opportunity to respond to the extrinsic evidence. They must be given a fair time frame to produce the documents that can address the concerns effectively.

An interview is not mandatory, but providing this opportunity to the applicant can be seen as a fair way of dealing with the issue. If the applicant is granted an interview, they should be either provided the services of an interpreter or allowed to bring in one.

The decision maker’s concerns must be communicated to the applicant. They must be given a reasonable opportunity to respond.

Whoever Hears Must Decide

It is fair that the person who hears the case must make the final decision. The person must be the authority and qualified to make a decision based on the information provided.  If there is only a person dealing with the information or the applicants, they must make a fair decision. It is possible that multiple persons may work on a particular application during the processing of documents and information.

That’s why it is important that all documents provided by an applicant are placed on record (either digital or physical) so that the decision-maker can pursue them. It must also be reasonably established that the decision-maker took into account all the relevant factors and arrived at a decision purely on the application’s merits.

Legitimate Expectation

When an applicant is assured that a fair and specific procedure will be applied, that applicant will be entitled to that procedure. If the law says that the applicant will be given 30 days to provide a specific document, the decision-maker cannot conclude the process before the 30-day period.

Decisions must be based on the Immigration and Refugee Protection Act (IRPA) and Regulations (IRPR)

If there is a refusal, the provision of the Act or Regulations must be clearly stated in the record of a refusal. All communications made to the applicant, including refusal letters, should mention the legislative provision(s) under which the decisions have been taken.

The Right to Reasons

The applicant is entitled to know the basis on which the authorities have decided on the application. The reasons must be clear and understandable. It must be provided in writing. The applicant must have all the information and data needed if they decide to appeal to the IAD or seek judicial review at the Federal Court. The reasons for the rejection of the application should reflect the assessment of the facts and evidence relied upon, the provision(s) of the Act, and/or Regulations on which the decision has been made.

ASI Immigration is a reputed name in immigration consultancy services in Canada. We have been providing highly valuable solutions to our clients looking to migrate to Canada. If you face any problems getting approved for Canadian immigration on account of procedural fairness or other reasons, contact us now. We will review your documents and information and provide you with the right solutions.

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