Agapi v. Canada (Citizenship and Immigration), 2018 FC 923 : Court Finds Misrepresentation Decision Unreasonable Where Officer Failed to Consider Innocent Misrepresentation Exception

Ievgen Agapi sought judicial review of a decision finding him inadmissible for misrepresentation under paragraph 40(1)(a) of the IRPA after immigration authorities determined that IELTS results submitted with his Manitoba Provincial Nominee Program application were not authentic. Agapi maintained that he honestly believed the results were genuine. The Federal Court set aside the decision because the immigration manager failed to consider whether the narrow innocent misrepresentation exception applied.

Key Principle

Although the innocent misrepresentation exception under section 40 of the IRPA is narrow, a decision-maker must consider it where the evidence reasonably raises the possibility that an applicant honestly and reasonably believed the information submitted was accurate. Simply stating that an applicant’s response to a procedural fairness letter did not alleviate concerns is insufficient where the response provides a detailed explanation capable of engaging the exception.

Background

Agapi, a Ukrainian citizen, applied for permanent residence through the Manitoba Provincial Nominee Program. He had been hired by a Manitoba trucking company and submitted IELTS results to establish his English proficiency. When updated results were requested, he completed language training at a school called Speak Up and took an IELTS examination in Kiev.

Agapi gave his passport to the school owner, who collected the results for him, following a process Agapi said was consistent with his previous experience. He received his Manitoba nomination, later entered Canada with a work permit and began employment.

IRCC subsequently verified the IELTS document with the British Council and raised concerns that the results were fraudulent. In response to a procedural fairness letter, Agapi explained how he obtained the document, why he had no reason to suspect it was false, and his unsuccessful efforts to contact the language school after concerns arose. Nevertheless, he was found inadmissible for five years.

Court Findings

• Evidence Raised the Possibility of Innocent Misrepresentation

The Court found that Agapi’s response provided detailed circumstances explaining why he believed the IELTS results were authentic. He had followed a collection procedure familiar to him, had no apparent reason to require the original results, and attempted to obtain further information from the language school after IRCC raised its concerns. Taken together, this evidence was sufficient to raise the possibility that the misrepresentation was honestly and reasonably made.

• Narrow Exception Still Required Meaningful Consideration

The Minister argued that Agapi was effectively blaming a third party and that the innocent misrepresentation exception applies only in exceptional circumstances. The Court accepted that the exception is narrow but held that its narrow scope did not eliminate the manager’s obligation to consider it when supported by the evidence. Decision-makers are presumed to know the applicable law and must address a potentially applicable legal exception.

• Reasons Failed to Address Agapi’s Explanation

The GCMS notes stated only that Agapi had been given an opportunity to respond to the concerns and that his information failed to alleviate them. The reasons did not address his explanation or explain why the innocent misrepresentation exception was unavailable. This left both Agapi and the Court unable to understand why a central issue raised by the evidence had been rejected, rendering the decision unreasonable.

Outcome

The Federal Court granted judicial review, set aside the misrepresentation decision and returned the matter for redetermination by a different decision-maker. No question was certified.

Case Citation:

Agapi v. Canada (Citizenship and Immigration), 2018 FC 923 (CanLII)