Procedural fairness and determining eligibility based on paper screening
This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.
Any application submitted in the prescribed manner must be assessed against the Canadian program criteria and, if the person meets the criteria, they must be issued a visa. Assessment against the criteria may or may not require a personal interview. The officer must apply the principle of procedural fairness (PDF, 597.29KB) in all cases.
Processing begins when an application is received and assessed at the visa office. If the principal applicant does not meet the requirements of any of the classes, the same assessment must be made of other family members on the principal applicant’s application. Not all applications will be clearly eligible or ineligible based on a paper review.
Is an interview required by legislation?
Although legislation does not require that a personal interview be used as the means to determine eligibility, it is difficult to defend a negative determination when the factor assessed is more subjective than objective. For example, refusing persons on the grounds they lack the personal qualities to establish themselves without an interview could be hard to defend. In spite of this, there is nothing that prevents a positive determination without an interview. Likewise, when assessing the credibility issues, the paper process could be inadequate. While it is accepted that the written submission could be an adequate substitute for an oral hearing in appropriate circumstances, where a serious question of credibility is involved, fundamental justice could require an oral hearing.
There is nothing, however, that prevents a positive determination without an interview, or a negative determination when it is clear that an applicant is ineligible (e.g. not outside their country of origin).
Assessment on paper without an interview is rare in the refugee context given that information on the application is often incomplete, and substantiating documentation may be unavailable. However, in some cases, such as the one-year window, officers may waive the interview, where possible.
Can the applicant be accepted without an interview?
Although there is no legal or regulatory requirement to interview any refugee applicant, normally all applicants who are eligible for processing are interviewed.
For applicants who apply as Convention refugees abroad or members of the country of asylum classes, the principal applicant and accompanying family members need to meet the regulatory and admissibility requirements, i.e., completing IMM 0008, security and criminal checks, medicals, etc.
An interview facilitates obtaining information that may not be available or clear in the paper file (ex. identifying special needs and destining considerations). Without an interview it is more difficult to establish the applicant’s credibility and eligibility, particularly in the absence of reliable supporting documentation.
Officers should consider waiving an interview only when:
- credibility is not an issue;
- a case has been identified as an urgent protection case (See Section 7.6); or
- the application is complete and there is sufficient documentation and information to make a determination of eligibility and admissibility; and
- the country conditions are well understood and excellent relationships have been established with referral organizations such as the UNHCR (this can apply to both GARs and PSRs).
If the interview is waived, then medical examinations and background checks are initiated and then the officer proceeds to Final decision.
If the interview is not waived, the officer proceeds to Prepare for the interview.
Refusing an application without interview
- To determine eligibility, an officer may assess the application without an interview.
- Examples of when an officer might refuse an application without a personal interview include situations where:
- the visa officer has requested, via reasonable means, (i.e: e-mail, phone calls and letter), additional information or documentation that is relevant to forming an opinion on the application and the applicant has not complied within a reasonable time period of 90 days (ex. officer requests evidence that applicant has sought protection from the host country before approaching Canada and applicant does not comply or sends information indicating they are just about to seek protection);
- the visa officer has sufficient information that the individual is falsely representing themselves (ex. a new application that does not disclose relevant information provided on a previously refused application where such non-disclosure is clearly an attempt to circumvent the Act or Regulations and the applicant has not responded to requests for clarification);
- the applicant is clearly not a member of one of the refugee classes. (ex. applicant is still in their home country or country of habitual residence; is clearly not fleeing persecution based on any of the five grounds; or the refugee claim does not point to a gross violation of human rights that would have a serious and personal impact on the individual);
- documents provided to support the refugee claim are known to be fraudulent (ex. officer has determined that the documents are fraudulent based on evidence gathered in the course of data collection) and the applicant has not responded to the fairness letter or addressed the officer’s concerns;
- the applicant has a durable solution already (ex. applicant has been granted asylum in the host country and has the rights accorded to other foreign nationals).
A stay of a deportation order does not constitute a durable solution. While the stay of deportation may mean the person is safe from deportation or refoulement, it does not mean the person has a durable solution. In such cases, the application should be assessed against Canadian program criteria to determine if the person is eligible for permanent resident status.
Procedural guidelines when refusing an application without an interview
The officer must apply the principle of procedural fairness (PDF, 597.29KB) in all cases.
The officer must:
- Send a letter to the applicant which explains the officer’s concerns and gives the applicant an opportunity to provide an explanation or any additional information before a final decision is made within a reasonable timeframe;
- Consider any explanation or additional information provided by the applicant within the specified timeframe and document in case notes the consideration given;
- Document the decision and reasons for the decision in case notes;
- Include in the refusal letter a detailed explanation as to why the applicant does not meet program requirements;
- Give due consideration to any information an applicant provides in response to the refusal that may change the material facts of the application; and
- Keep a copy of the refusal letter, the applicant’s response or any additional information in the applicant’s permanent file.
Procedural fairness provides that before making a final decision that is based on evidence submitted by a third party that was not publicly and reasonably available to the applicant, the applicant should be made aware of the contradiction and provided an opportunity to address the evidence received from a third party. The reasons for refusal must be clearly explained to the applicant and should disclose the information that led to the decision.
If a person was not found to be a member of any of Canada’s refugee classes, officers should not refuse the application on the basis of their having another durable solution, but rather, the person should be refused because they are not a member of a prescribed class.
Steps to follow when refusing based on the availability of a durable solution
If the applicant has not applied for protection in the host country AND the host country respects the right of non-refoulement and the refugee’s physical security is not at risk
The officer may refuse the application for resettlement in Canada on the basis that the individual has not sought the protection of the host country. Refusals based on non-compliance with R139(1)(d): visa officer unable to rule out the possibility of another durable solution.
If the applicant has applied for protection in the host country, but the application is still in process AND the host country respects the right of non-refoulement and the refugee’s physical security is not at risk.
The officer may refuse the application for resettlement on the basis that there is a possibility for protection from the host country. Refusal is based on non-compliance with R139(1)(d): visa officer unable to rule out possibility of another durable solution.
If the applicant has applied for protection in the host country but the application was withdrawn AND the host country respects the right of non-refoulement and the refugee’s physical security is not at risk
The officer may refuse the application on the basis that the applicant has not sought the protection of the host country. Refusals are based on non-compliance with R139(1)(d): visa officer is unable to rule out possibility of another durable solution.
If the applicant has applied for protection in the host country but the application was refused AND all meaningful avenues of appeal have been exhausted
In situations such as this, an interview may be necessary. Before proceeding to interview, the visa officer may request that the applicant present a copy of the application submitted to the host country, or a copy of the reasons for refusal by the host country, to ensure consistency in the applicant’s story. Once this has been provided and if the evidence in the new application does not add any new information, the officer may choose to make a final determination without an interview, based on the evidence submitted. Refer to OP 1, Section 8: Procedural fairness if refusing without an interview.
In some countries, failed asylum claimants are permitted to reside in the country and exercise most of the same rights as a foreign national without the threat of refoulement. If the permission to stay is as a result of a stayed deportation order or due to a temporary stay of removal to certain countries, again, the applicant should not be deemed to have a durable solution.
Where after interview, the officer determines that the applicant is a member of one of the Canadian program refugee classes and meets program criteria, the officer will complete processing as for any other application.
If the applicant has applied for protection in the host country AND the application was accepted
In most instances, this means a durable solution is available because the person has been granted asylum. The application for resettlement in Canada should be refused under R139(1)(d).
In exceptional circumstances, there may be cases where the host country recognizes a person as a Convention refugee, but the legal or physical protection needs cannot be guaranteed by the State. For example, the State cannot provide protection from domestic abuse. In such cases, the applicant may be considered for resettlement to Canada.
Refusing an application following a no-show for interview
Under specific circumstances, an officer may refuse an application if after an attempt to convoke the applicant to an interview, the applicant has not presented himself or herself to the interview, and has provided no explanation. To refuse an application following a no-show, an interview convocation letter to the applicant needed to clearly communicate that:
- a decision on the application will be made following the interview, even if the client chooses not to attend;
- the applicants (or their sponsors) are to advise the mission if the applicant can not attend the interview and how to contact the mission;
- the interview convocation notice was sent at least 60 days in advance of the interview; and
- the notice was sent to both the applicant and sponsor.
- If the applicant does not attend the interview and (or his or her sponsor) does not explain why, no final decision is taken until at least 30 days have passed since the missed appointment to allow for mailing delays.
- Refer to 10.4 for procedural guidelines for refusing an applicant without interview.
Refusing an application following the loss of contact with a privately sponsored refugee
If the visa office loses contact with a privately sponsored refugee, the sponsoring group should be notified. The visa office, via e-mail, should contact the Resettlement Operations Centre in Ottawa (ROC-O) to contact the sponsoring group when there has been no further contact by the refugee with the visa office or the sponsoring group.
If the sponsor wishes to continue with the sponsorship, they must provide the visa office with updated and correct contact information for the refugee within 30 days. Otherwise, the visa office should:
- Send a procedural fairness letter to the applicant indicating that they have 90 days to provide the required information before their case will be refused.
- At the end of 90 days, the visa officer will send a refusal letter to the applicant, code the case as withdrawn, and close the case in CAIPS/GCMS. They should also inform the local office via e-mail that the case has been closed.
Urgent protection cases (UPP)
Interviews may also be waived in urgent protection cases that are fully documented and in locations that cannot be accessed by a visa officer. Note that refugees admitted under the UPP and those determined by a visa officer to be vulnerable, are not required to demonstrate an ability to successfully establish in Canada.
In the case of de facto dependants
It is not recommended to waive the interview, since many details, such as identity, relationship to and dependency on the principal applicant, and whether the dependants are refugees in their own right, must be verified.
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