Fairness in the application process

This section includes policies, procedures, and guidelines used by IRCC staff. Decision-makers are required to adhere to fair work process rules throughout the decision-making process.

Fairness requires that applicants be given the following:

• Their applications are evaluated fairly and impartially.
• to be informed of the concerns of the decision-makers, and
  Applicants have the opportunity to provide feedback on these concerns.

The requirement for fair procedure applies to all types of immigration and citizenship applications and to all aspects of decision-making.

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Key elements of fairness in the application process

• Processing without excessive delay.
• The right to fair and objective decision-making.
• The right of applicants to be heard.
• Whoever hears the testimony has to make the decision.
• Legitimate expectations
• Decisions must be based on the Refugee and Migrant Protection Regulations and Acts (IRPR).
• The right to an explanation

Processing without excessive delay.

Applications will not be subject to unnecessary delays. Unjustified delays are contrary to procedural fairness.

The right to fair and objective decision-making.

Candidates have the right to a fair and objective decision-maker.

Examples of biased situations, or perceptions of bias, might include:

• Evaluate a problem before listening to it.
• prejudiced attitude
• inferred from the previous case
• the relationship between the decision-maker and one of the stakeholders (e.g., financial interests), etc.

The right of applicants to be heard.

When an individual is affected by a decision, that individual has the right to know the reasons and must be given a fair opportunity to respond.

The “right to be heard” requires applicants to be informed of significant events that could affect the outcome of their application. For example, if a decision-maker relies on external evidence (i.e., evidence obtained from sources other than the applicant), they must inform the applicant of this and give the applicant an opportunity to respond to that evidence.

To ensure applicants have a meaningful opportunity to participate, decision-makers must fully inform applicants of any process or interview that may lead to a decision on their application, and must give applicants a reasonable opportunity to provide evidence or make arguments in support of their application. Decision-makers should inform applicants of what documents may be required to address concerns. Full information should be included in the interview invitation letter to allow applicants to prepare. If any other concerns arise from an interview, decision-makers should provide applicants with an opportunity to address those concerns at or after the interview, through a fair letter of procedure.

The right to be heard does not necessarily include the right to be interviewed, although in some cases, an interview may be the most appropriate way to proceed. If an applicant is interviewed, the applicant should be allowed to bring an interpreter, or in certain circumstances, should be provided with an interpreter.

The right to be heard requires applicants to have meaningful opportunities to participate in the process. This requirement also applies to information received from third parties, including IRCC partners. While this does not mean that decision-makers must provide the actual documents referenced in the decision-making process ( El Maghraoui, 2013 FC 883 ), there is a requirement that the nature of the decision-maker's concerns be communicated to the applicant ( Krishnamoorthy, 2011 FC 1342 ) and that the applicant be advised of the specific provisions of the Act in question. It is important that the decision-maker's concerns are fully communicated to the applicant, who is then given a reasonable opportunity to respond.

Whoever hears the testimony has to make the decision.

The person listening to the trial is the one who makes the final decision.

"Listening" in this context doesn't mean interviewing. It means that the decision-maker must evaluate the information provided and make a decision. Acts, regulations, and various authorization tools specify who has the authority to make decisions.

When decision-makers exercise their decision-making power, they evaluate information within the context of applicable law. If the decision-maker is the only one viewing the information or dealing with applicants, then it is clear they have “heard” and decided. However, during the processing, different people may be working on a particular file. Therefore, it is crucial that all documents provided by the applicant are included in the file (electronic file or paper file) for the decision-maker to review. The decision file must also demonstrate that the decision-maker has considered all relevant factors, including all applicant submissions, and that they have made their own decision based on the file.

If a decision is based on subjective assessments (e.g., reliability), it must be clearly documented that the decision-maker made the assessment. Decision-makers should not rely on the subjective opinions of others; they must make their own decisions based on complete information and must provide factual and objective reasons for their decisions.

In some cases, responsibility for the application may be transferred to a different decision-maker. The new decision-maker must ensure that all information in the application has been evaluated and that this has been clearly stated in notes. Once the application has been transferred to a different decision-maker, it may be necessary to send a letter of fairness under the new procedure or even re-interview the applicant, especially if subjective evaluations made by the previous decision-maker were relevant to the final decision on the application.

Finally, while requiring the listener to make a decision does not prevent the decision-maker from seeking advice before making a final decision, the decision record must indicate that, after evaluating all relevant factors, the decision-maker arrived at their own conclusion. The decision-maker may use advice received from management, from top leadership, or from a procedure manual guiding the application of applicable Acts and Regulations to the specific case. If the decision-maker makes a decision due to direction from management, top leadership, or procedural instructions, it remains their personal decision.

Legitimate expectations

Once a person has been assured that a specific procedure will be followed, that individual is entitled to carry out that procedure. For example, if an applicant has been given 30 days to provide certain documents, no negative decision may be made before the end of the 30-day period, even if some documents have been received.

Decisions must be based on the Refugee and Migrant Protection Regulations and Acts (IRPR).