The Federal Court reviewed IRCC’s refusal of work permit
application and the accompanying finding of inadmissibility for
misrepresentation under paragraph 40(1)(a) of the Immigration and Refugee
Protection Act. The refusal was based on a fraudulent Labour Market Impact
Assessment submitted by the applicant’s immigration consultant. The Court
granted judicial review because the officer failed to address the applicant’s
evidence that he had no access to his GCKey account, had not reviewed or signed
the application materials, and had contacted IRCC before the refusal to report
that he was likely a victim of fraud.
Key Principle
Where an applicant informs IRCC before a decision that a
representative may have submitted fraudulent documents without the applicant’s
knowledge or authorization, the officer must meaningfully engage with that
explanation. The officer must also consider whether the innocent-mistake
exception applies and whether the applicant exercised reasonable diligence. A
procedural fairness letter does not provide a meaningful opportunity to respond
where the applicant cannot access the online account containing it and
expressly informs IRCC of that problem.
Background
The applicant, an Iranian citizen, retained an immigration
consultant in 2020 to assist with obtaining a Canadian work permit. The
consultant submitted the application in 2022 but did not allow the applicant to
review the documents, sign the forms, or access the GCKey account created in
his name.
The consultant was later exposed as having engaged in fraud.
In February 2023, IRCC sent a procedural fairness letter through the
applicant’s online account raising concerns that the LMIA was fraudulent.
The applicant did not see the letter because he could not
access the account. In March 2023, he contacted IRCC through a webform,
explaining that he lacked access to the account and believed he had been a
victim of mass fraud.
In May 2023, the officer refused the work permit application
and found the applicant inadmissible for misrepresentation based on the
fraudulent LMIA.
Court Findings
• New Evidence Was Admissible
Evidence concerning the consultant’s fraud was admitted
because it arose after the decision, related to natural justice, and did not
improperly ask the Court to decide the merits anew.
• Applicant’s Webform Submissions Were Ignored
The officer had the webform before making the decision but
did not address the applicant’s statements that he lacked GCKey access and had
been victimized by the consultant.
• Innocent-Mistake Exception Was Not Considered
The officer failed to assess whether the applicant honestly
and reasonably lacked knowledge of the fraudulent LMIA or whether his efforts
to alert IRCC demonstrated due diligence.
• Procedural Fairness Was Breached
The officer incorrectly treated the webform as a response to
the procedural fairness letter even though the applicant expressly stated that
he could not access or view the letter. This deprived him of a fair opportunity
to respond to the allegations.
Outcome
The Federal Court granted judicial review and set aside the
refusal and misrepresentation finding. No question was certified.
Case Citation:
Amini v. Canada (Citizenship and Immigration), 2024 FC 2052 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
