A fundamental principle of natural justice/procedural fairness is that an applicant should have knowledge of the case against them, especially in the context of receiving reasons for refusal. Procedural Fairness requires that applicants know within a refusal why their application was refused and what sections of the law applied.
In my own practice, and at an alarming rate, I have started to see In-Canada spousal sponsorship refusals made often times several weeks/months after the initial interview that do not include anything other than boilerplate refusal language. Indeed, often times the boiler plate language does not even cover the full/actual grounds of refusal. No case-specific analysis is provided.
Several of these individuals have confided in me that during the interviews specific grounds of concern are never even raised and that they had no clue following the interview that credibility, evidence sufficiency, or even the bad faith provision of IRPA was even a concern. While case law tells us there is no requirement for a “running score,” many times these sponsors and applicants have no clue what the score even is.
In an inland setting, Officers generally write longer refusal decisions than in typical visa office cases where often times a copy of the interview is merely inputting into Global Case Management System (GCMS). These decisions often span several pages and include interview notes highlighting the responses of both Sponsor and Applicant (who often are interviewed together), the Officer’s handwritten notes, and a final written decision. None of this, as Immigration’s general practice, is disclosed to the Client during the refusal process.
In various contexts, although I wish it weren’t that way, it makes sense that detailed/case specific reasons are not made available to Applicants in writing at the time of a refusal. For example, for the volume of study permits and temporary residents that some overseas visa offices process, it would be unduly burdensome for each to write varied, case-specific reasons into the decision. However, even in these cases there is often detailed reasons or else a checklist with boxes ticked off. This baseline reasoning is absent in a majority of the in-land refusal letters I am seeing.
The Applicant only has 15 days to file judicial review from the notice of a failed In-Canada Spousal Sponsorship on the basis that the decision made was unreasonable or not procedurally fair. In most of these cases where reasons are not provided, a judicial review becomes automatic because there is simply no clue as to why the application was actually refused.
In an overseas spousal sponsorship, an Applicant could reasonably get a copy of the reasons for refusal through Access to Information. More importantly, there is a statutory right of appeal provided.
Other than the fact that there is no statutory right of appeal in an inland context, the other challenging factor is that many of these individuals choose inland because of some challenge maintaining status in Canada or a possible inadmissibility concern. One would think that in this context a heightened level of procedural fairness (per Qin/Baker framework) would require greater disclosure than what is currently being provided. Indeed, in an outside Canada spousal interview, there is usually a portion of the interview dedicated to the Officer putting a list of concerns directly to the Applicant near the end of the interview. I have seen this rarely followed in parallel Inland cases which mirror more a fishing expedition.
I call on IRCC to change their current practice/policy to ensure that all In-Canada Spousal refusals receive detailed reasons for refusal that allow them to properly consider actions of recourse: be it reconsideration, judicial review, or filing a new outside Canada sponsorship. At the very least, the Officer’s detailed written decision should be attached – much like it is in the context of an H&C or PRRA decision. Procedural Fairness suggests that this should be the correct process. The expensive and burdensome process of litigation and ATIPs (in many of these cases) can also be avoided through more transparent decision-making.
*Ps. practice tip = Applicants and their counsel should and can follow-up to ask for written reasons from the Tribunal (decision-maker) in this context. Often times the written reasons will be sent/faxed shortly thereafter.