Asif v. Canada (Citizenship and Immigration), 2025 FC 1326 : Misrepresentation Finding Set Aside Where Officer Raised New Credibility Concerns About Payroll Records Without Further Procedural Fairness

The Federal Court granted judicial review of the refusal of the Applicant’s Provincial Nominee Program permanent residence application and the resulting finding of inadmissibility for misrepresentation under s 40(1)(a) of the Immigration and Refugee Protection Act. The Court held that although the Applicant had received a procedural fairness letter concerning the genuineness of his previous employment, the Officer subsequently raised new concerns about the credibility, accuracy and genuineness of payroll records submitted in response. Because the Applicant was not given an opportunity to address those new concerns, procedural fairness was breached.

Key Principle

While officers generally have no obligation to alert permanent residence applicants to concerns regarding the sufficiency of supporting evidence, procedural fairness is engaged when an officer questions the credibility, veracity or genuineness of documentary evidence. Where an applicant responds to a PFL with additional evidence and the officer develops new credibility concerns about that evidence, a further opportunity to respond may be required.

The Court emphasized that the higher degree of procedural fairness applicable to misrepresentation cases reflects the serious consequence of a five-year inadmissibility period.

Background

The Applicant was nominated by Saskatchewan as a bricklayer and applied for permanent residence in November 2018. His application was later reopened after IRCC identified “commonalities across other applications.” IRCC subsequently investigated his claimed employment with Zeeshan Builders, including a site visit and telephone verification with the alleged employer.

In May 2022, IRCC issued a PFL expressly raising concerns that the claimed employment had been falsified. The Applicant responded with a declaration, a letter from his former employer, salary records covering November 2018 to December 2019, and photographs of the workplace.

After reviewing this material, the Officer stated that the Applicant had not established the claimed work experience and that it appeared he had provided fraudulent documents. The matter was then referred for a s 40 misrepresentation determination, resulting in refusal of the PR application and five-year inadmissibility.

Court Findings

• New credibility concerns arose: The Officer characterized the payroll records as poor-quality documents, apparently prepared manually rather than through a payroll system, and noted the absence of bank deposits or tax documents. The Officer then expressly stated that the salary records were not credible and appeared fraudulent.

• A second PFL was required: The original PFL alerted the Applicant to concerns about whether his employment itself was genuine. However, the Court found that the Applicant could not reasonably have anticipated that the payroll records he submitted in response would themselves become the subject of new credibility, accuracy, veracity and genuineness concerns. Those concerns required a further opportunity to respond.

• Sufficiency and credibility are distinct: The Court accepted that an officer need not generally advise an applicant that evidence is insufficient. However, once the Officer moved beyond evidentiary sufficiency and questioned whether the documents were genuine or fraudulent, procedural fairness was engaged.

• Potential response was material: On judicial review, the Applicant explained that salaries were paid in cash and employees signed or used fingerprints to acknowledge receipt. The Court did not decide whether this explanation would ultimately resolve the concern; that assessment was for a new decision-maker after the Applicant was given a proper opportunity to respond.

• Incomplete record issue not decided: The Court also noted that the RAU verification report appeared to be missing from the Certified Tribunal Record. However, because procedural fairness was independently determinative, it was unnecessary to decide whether the record was incomplete.

Outcome

The Federal Court allowed the judicial review, set aside the March 18, 2024 decision, and remitted the matter to a different officer. The Applicant must be given an opportunity to submit further evidence and submissions concerning the payroll records. No question was certified for appeal.

Case Citation:

Asif v. Canada (Citizenship and Immigration), 2025 FC 1326 (CanLII)