Akintunde v. Canada (Citizenship and Immigration), 2022 FC 977 : Express Entry Misrepresentation Finding Upheld Where Spouse Failed to Disclose Business and Consulting Employment

The Federal Court dismissed judicial review of the refusal of the Applicant’s Federal Skilled Worker, Express Entry permanent residence application on the basis of misrepresentation under s 40(1)(a) of the Immigration and Refugee Protection Act. The misrepresentation arose from the accompanying spouse’s failure to disclose employment and business activities with Edu-Fount Consult. The Court found that the Officer provided adequate procedural fairness and reasonably concluded that the omission was material.

Key Principle

An applicant must disclose relevant information again when it is required by a current immigration application, even if the same information was disclosed in a previous application. An officer is not required to search through unrelated prior applications to identify information that the applicant omitted from the current application. Where the omission concerns employment history and the surrounding evidence gives rise to credibility concerns, the omission may constitute material misrepresentation under s 40(1)(a).

The Court also confirmed that, given the serious consequences of a misrepresentation finding, procedural fairness requires a meaningful opportunity to respond. That requirement can be satisfied either by advance notice of the interview concerns or by allowing the applicant to respond to concerns raised during the interview, including through a subsequent procedural fairness letter.

Background

The Applicant applied for permanent residence through Express Entry as a lawyer and Quebec Notary, with their spouse and daughter as accompanying family members. The Applicant and spouse were both lawyers and operated a law firm in Nigeria. The spouse had also come to Canada for an LLM and subsequently held a post-graduate work permit.

The spouse was interviewed after IRCC discovered, through a separate investigation, that their credit card had been used to pay visa application fees for clients associated with Edu-Fount Consult. During the interview, the spouse acknowledged founding and operating the business and indicated that they had assisted at least ten clients. A PFL subsequently advised that the spouse had failed to disclose this employment and had provided evasive or contradictory answers.

The Officer ultimately found that the omission was material and constituted misrepresentation. Because the spouse was inadmissible under s 40(1)(a), the Applicant was also inadmissible under s 42(1)(a).

Court Findings

• Procedural fairness was satisfied: Although the spouse was not told the precise purpose of the interview beforehand, the Officer raised the concerns during the interview and subsequently provided a PFL. The Applicant therefore had an opportunity to respond both during and after the interview.

• Prior disclosure did not cure the omission: The Court rejected the argument that disclosure of Edu-Fount Consult in an earlier work permit application established an innocent mistake. The information had been previously submitted by the Applicant, meaning the Applicant could not claim to have been unaware of it. Applicants must disclose relevant information again where it is required in a current application.

• Materiality was established: The Officer reasonably found the undisclosed employment relevant to the admissibility assessment. The spouse had described themselves as an entrepreneur, acknowledged operating Edu-Fount, and stated that they had accepted fees from clients. The Officer also identified contradictions between the spouse’s answers and counsel’s submissions regarding whether fees had been received.

• No duty to search prior applications: The Court accepted the Officer’s explanation that applicants are responsible for providing accurate information in the current application and that officers are not required to review unrelated historical applications to locate information omitted from the present application.

• Definition of work: The Court rejected the argument that the activity did not constitute “work” under the IRPR because it was allegedly unpaid or unprofitable. Operating a business and acting as a consultant, particularly where the spouse acknowledged receiving fees, reasonably fell within the relevant definition.

Outcome

The Federal Court dismissed the judicial review application and found that the Officer’s decision was procedurally fair, internally coherent, and reasonable. No serious question of general importance was certified.

Case Citation:

Akintunde v. Canada (Citizenship and Immigration), 2022 FC 977 (CanLII)