Where immigration officers have extrinsic evidence particular to an applicant, and that applicant is unaware that the immigration officer has that evidence, then procedural fairness requires that immigration officers disclose this evidence to the applicant.
Two recent Federal Court decisions affirm this principle.
In Zaib v. Canada (Citizenship and Immigration), 2010 FC 769, a visa officer became concerned with the legitimacy of an applicant’s educational credentials. The immigration officer asked the applicant to provide documentary confirmation of his degree. The officer then received a letter purportedly from the applicant’s university, the University of Punjab. When the officer contacted the university to ask questions about the letter, the officer was told that the letter was a fake.
The officer then sent a letter to the applicant stating that he had “reasonable grounds to believe that the degree you have submitted is fraudulent. Please provide evidence to the contrary within 30 days…” The officer did not mention the conversation with the university.
The Court found that this breached procedural fairness. It stated that an applicant must be made aware of the “case to be met”, i.e., the information known by the officer must be made available to the applicant prior to the decision being made.
If an officer relies on extrinsic evidence (i.e., evidence received from sources other than the applicant), they must give the applicant an opportunity to respond to such evidence.
The Court noted that the officer never asked the University of Punjab to verify whether or not the applicant’s degree was real. He only expressed concerns over whether the letter was real. His refusal letter, however, was based on questions about the degree, not the letter.
In Akinmayowa v. Canada (Citizenship and Immigration), 2011 FC171, the applicant applied under humanitarian & compassionate grounds. As noted by the Court, the officer deciding the application had received a letter which stated:
This letter to the Immigration Case Processing Centers in Mississauga and Vegreville from an anonymous source calling itself “CONCERNED NIGERIAN/CANADIANS, TORONTO”, states, and I paraphrase:
1) the marriage between the applicant and her husband “should not be given a favourable consideration due to its illegal nature;
2) the applicant is married to a prominent business man in Nigeria and “there was no problem whatsoever within the family”. The story before the IRB is “fiction”;
3) The applicant arranged this marriage and paid $8,000; and
4) This is a “bogus marriage” for immigration purposes.
Like in Zaib, the Court found that the failure to disclose this extrinsic letter to the Applicant was a breach of procedural fairness.
In Kahin v. Canada (Citizenship and Immigration), 2011 FC 1064, the Respondent argued that a visa officer did not have a duty to disclose the results of his investigation because the applicant should have anticipated that the officer might seek to verify the information that he submitted. However, Justice Barnes found that the information nonetheless had to be disclosed because “the information relied upon here might well be wrong, incomplete, or open to explanation.”
As Justice Barnes noted in citing the Federal Court’s decision in D.K. v. Canada:
The Officer may have been right in concluding that the post-hearing material was of no value and may have been fraudulent but that is not the point. The point is that the applicant and her counsel had no opportunity to comment on the evidence which the officer herself obtained and relied on to render the decision she reached.