The officials who are included in the decision making process or are the decision makers, are required to follow the rules based of the procedural fairness.
It is required by the procedural fairness that:
- Applicant must be provided with a fair and unbiased assessment of the application they have submitted
- They must be informed about the decision makers’ concerns, and
- Should have an opportunity to give response to the concerns of the decision makers
The rules and standards of the procedural fairness applies to all the immigrants and the citizenship applications including all aspect of decision making.
Elements of the procedural fairness
The applications should be processed without undue delay, any delay which can’t be justified will be taken as a denial of procedural fairness.
It is the basic right of all the applicants that they have fair and impartial decision makers. It is demanded by court that any kind of biasness or even the perception of being biased needs to be avoided.
Some examples of perception of bias, or situations of bias, include;
- Getting to judge a matter before it is heard
- Attitude which is prejudicial
- Having previous involvement in case
- Any kind of relationship between the decision maker and the other parties
If a case of the individual has been affected by the decision, the individual has the right to know about the reasons and an opportunity should be given to him/her to address the concerns.
The applicant must be given “the right to be heard” and should be given knowledge about all the significant facts which could affect the outcome of the application. For example, in a case where decision maker is relying on extrinsic evidence i.e. evidence received from the sources of other than the applicant, the applicant should be informed about the evidence and should be asked for a response for this evidence.
In order to make sure that the applicant has the equal opportunity, decision makers need to give the applicants a specific time notice if there is any interview or process which could result in the decision on their application and must give them a chance to bring evidence or necessary argument material which would help supporting their application. The decision makers are required to tell the applicants that which evidence is required to address the necessary concerns. Required information should always be given on the interview invitation letter so that the applicant could prepare. In the process of the interview, if any concerns arise then the decision maker has to provide an opportunity to the applicant so that they could address the concerns either between the interviews or after it, by the process of procedural fairness letter.
It should be noted that the right to be heard does not include the right to interview in all the case, however, in some cases an interview must be the most important way to proceed. In the situation where the applicant has been called for an interview then they should be allowed to bring an interpreter or they should be given an interpreter.
Following the right to be heard means that the applicant is given a chance to be part of the process. The individual has all the right to know about details of the case and an opportunity to respond. They should be informed about all the information from the third parties including the IRCC but the physical documents consulted during the decision making process should not be shared, and only the essence should be communicated to the applicant. All the concerns of the decision makers should be communicated to the applicant and then they should be given a chance to respond.
The person who hears the case has the authority to make the final determination.
Although “hear” does not mean an interview but it means that person who has the legal authority must assess the information and make a decision. It is very clear in the Act regulations that who has the authority to make the decision.
When the decision makers are making the decision they are required to assess the information provided and then make a decision. If only the decision maker has the authority to assess the information and make the decision then it is clear that they heard and decided. However, different people may work on the application in the process. It is therefore required that all the information which is being processed (electronic or paper) must be recorded for the consideration of the decision maker. The decision by the decision maker must show that he/she has looked for all the relevant factors, which includes all the submissions done by the applicant and now they have made their decision based on the merits of the individual.
If the decision has been made on the subjective assessment then it should be recorded clearly that the decision maker has made the assessment. The decision maker should not anyhow depend on any other individual’s subjective assessment and they must make the decision based on the complete information and also has the reasons for their decision.
There might be also a chance that under some circumstances, the application might get transferred to a different decision maker. The new decision maker has to make sure he/she does all the assessment and must also note that it has been done. If an application has been given to a new procedural fairness letter to the applicant and also invite the applicant for an interview especially if subjective assessments have been made by the former decision maker which is relevant to the final decision of the application.
The person who is hearing must decide but it does not refrain the decision maker to be seeking advice before making the final decision it should be indicated that the final decision has been made on the assessments of all the relevant facts and not come to any conclusion on their own. Any advice which has been received from the manager, headquarters or from any procedure manual, the decision maker can take it as guidance while applying the applicable provisions of the Act and also the regulations to the facts. If any decision maker gets a decision call from a manager or headquarters they must restrain it.
These are the examples to follow the procedure in situations if the original decision maker is not available to make the final call:
- The assessment has been done and it can be seen from the notes that a negative decision has been made, but the decision maker isn’t available now to send a refusal letter
- Other person who has the same level of the delegated authority can also send the refusal letter. However the person who would be sending the letter could not take the ownership of the decision and should refer finding the actual decision maker in the letter. Insert a note in the GCMS
- The applicant was interviewed and the decision maker has found a credibility finding but the decision maker is not available to finalize the assessment
- Prior to make the decision, the decision maker must be able to make the assessment on their own of the application and they must re-interview the applicant or even send a letter explaining their concerns
- The individual was interviewed but it was based on fact finding. And now a new decision maker has taken over
- Decision can be given based on the facts which are gathered but the other person and can be addressed during an interview or in a procedural fairness letter
In case of refusal, the provision or the ACT must be included in the record. All the communication with the applicant must be referring to the legislative provisions.
After the assurance that the particular procedure will be followed then the applicant is entitled to that procedure. For example, if 30 days are given to provide documentation then a negative decision should not be made prior to the 30 day period even if the some of the documentation has been completed.
The applicant is entitled to under on what basis the decision has been made on the application. The reasons should be provided in writing, precise and also understandable. The application must have sufficient information to prepare for the submission if he/she decides to make an appeal to the IAD. All the reasons which have been provided to the applicant must reflect the facts of the assessments and evidence of the Act or the Regulations based on which the decision has been made the reasoning should be given for the conclusion by the decision maker.
Assessment of Eligibility
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