Where an undertaking has been made by a public body, that an individual will enjoy a particular benefit, or that the public body will perform some duty, then the person to whom the promise was made has a right to expect that the body will act in accordance with that undertaking. This is a result of the common law doctrine of legitimate expectation which flows from the general principles of procedural fairness in the area of administrative law.
The doctrine of legitimate expectation first appeared in a 1969 British decision and has since been applied by Canadian courts in the context of immigration matters.
Indeed, we have recently been involved as co counsel, in the successful presentation of this concept for the first time in Quebec immigration matters, before the Quebec Court of Appeal, where seven of our cases were favourably overturned on behalf of our clients.
Essentially, applicants may have a legitimate expectation of a particular type of treatment for example where a policy guideline provides for a particular method of procedure to be followed by visa officers; or that a decision will be held in abeyance at the express undertaking of a visa officer, pending the production of additional documentation.
Readers are cautioned against the construing of this principle to an expectation of being successful in their applications for permanent residence. Applicants are advised that when applying for Canadian permanent residence, to maintain detailed records of their correspondence and communications with visa officers, to support a possible writ of mandamus, the appropriate remedy available under the judicial review process.
