The Federal Court reviewed Sakshi Likhi’s spousal open work
permit refusal and the accompanying finding of misrepresentation under
paragraph 40(1)(a) of the IRPA. Although the work permit issue later became
moot because her husband no longer held status in Canada, the five-year
misrepresentation finding remained at issue. The Court found the process
procedurally unfair and the decision unreasonable because Ms. Likhi was not
adequately informed that the genuineness of her marriage was the focus of the
interview and was not given a meaningful opportunity to provide responsive
evidence.
Key Principle
Although temporary work permit applications generally
attract a relatively low degree of procedural fairness, a misrepresentation
finding under paragraph 40(1)(a) attracts greater procedural protection because
of its serious consequences, including five years of inadmissibility. Where an
officer’s concern goes beyond insufficient evidence and involves credibility,
authenticity, or truthfulness, the applicant must be clearly informed of the
concern and given a meaningful opportunity to respond.
Background
Ms. Likhi and Anand Sethi entered into an arranged marriage
after being introduced through a matrimonial website. They held an engagement
ceremony and civil marriage in July 2018, followed by a larger social wedding
and reception later that year.
Ms. Likhi applied for an open work permit based on her
husband’s employment in Canada. IRCC had concerns about the rapid progression
of the marriage, photographs, communications, and the marriage documentation.
GCMS notes recommended an interview specifically to assess the bona fides of
the relationship, but Ms. Likhi was not told this was the interview’s purpose.
During separate interviews, officers identified
discrepancies concerning travel dates, family events, wedding photographs, and
Mr. Sethi’s education. When additional photographs were requested, Ms. Likhi
was not permitted to retrieve them from her phone or submit them afterward.
Court Findings
• Higher Procedural Fairness Applied
The Court distinguished an ordinary work permit refusal from
a misrepresentation finding. Because the latter carries a five-year bar and
significant consequences, a higher degree of fairness was required.
• Credibility and Insufficiency Are Different
The Court emphasized that insufficient evidence does not
automatically amount to misrepresentation. Here, the officers did not merely
find the evidence inadequate. They disbelieved Ms. Likhi’s evidence and
explanations, triggering a duty to disclose those credibility concerns and
provide a meaningful opportunity to respond.
• Applicant Was Not Given a Fair Opportunity to Respond
The GCMS notes contained a “DO NOT DISCLOSE” direction
concerning the marriage-genuineness concerns. The Court found that Ms. Likhi
should either have been told beforehand that the interview concerned the bona
fides of her marriage or been permitted to make post-interview submissions.
The Senior Officer also failed to meaningfully address her
explanations regarding the multiple marriage ceremonies, wedding photographs,
and her knowledge of her husband’s life.
Outcome
The Federal Court granted judicial review, set aside the
misrepresentation finding, and remitted the matter to a different officer for
redetermination after inviting Ms. Likhi to provide additional submissions.
Case Citation:
Likhi v. Canada (Citizenship and Immigration), 2020 FC 171 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst





