The Federal Court reviewed the refusal of a Canadian
Experience Class permanent residence application based on misrepresentation
under section 40(1)(a) of IRPA.
The applicant claimed qualifying Canadian work experience
with KMJ Homes Inc. However, the officer found significant inconsistencies
concerning the existence of the employer, the authenticity of employment
documents, and evidence suggesting that the applicant was instead working for
another organization. The Court upheld both the procedure followed and the
ultimate misrepresentation finding.
Key Principle
Where an officer is contemplating a finding of
misrepresentation, procedural fairness requires that the applicant be informed
of the material concerns and given a meaningful opportunity to respond.
However, once an adequate Procedural Fairness Letter has
been issued and the applicant has responded, the officer is generally not
required to issue another PFL simply because the first response fails to
resolve the concerns.
A second opportunity is required only where a genuinely new
ground of misrepresentation arises.
Background
The applicant claimed that he had worked as an
administrative assistant for KMJ Homes Inc. from November 2014 to May 2017. He
submitted an employer reference letter, job offer, pay stubs, tax documents,
T4s, and other records in support of that employment.
During verification, the officer could not locate meaningful
information about KMJ. The telephone number on the employer letter belonged to
an unrelated massage and spa business. The officer also found online
information identifying the applicant as an employee of the Durdy Bayramov Art
Foundation, although the applicant stated that his involvement there was only
volunteer work.
A PFL specifically advised the applicant that the officer
questioned whether KMJ existed, whether the employment was genuine, and whether
the supporting documents were authentic. The applicant responded with
additional explanations and documents. A second request and PFL were later
issued, but no response was received.
Court Findings
The applicant argued that his immigration consultant failed
to monitor the online account and therefore missed the second PFL.
The Court held that this did not establish procedural
unfairness. The first PFL clearly identified the potential misrepresentation
finding, the questionable employment, the suspicious employer information, and
the concerns with the pay stubs. The applicant had therefore been given a
meaningful opportunity to know and answer the case against him.
The officer was not legally required to provide the second
opportunity. Giving the applicant an additional chance to provide evidence did
not create a higher procedural fairness obligation.
The Court also upheld the substantive misrepresentation
finding.
Evidence reasonably supported the conclusion that KMJ was
not a genuine employer: it had no meaningful online presence, its telephone
number belonged to another business, its address had been used as the
applicant’s residential address, and later corporate documents suggested a
family connection between the applicant and those associated with the company.
The officer was also entitled to question the authenticity
of the tax and employment documentation and to rely on independent evidence
identifying the applicant as an employee of the Foundation rather than merely a
volunteer.
Outcome
The Federal Court dismissed the application for judicial
review, finding no breach of procedural fairness and holding that the
misrepresentation decision was reasonable.
Case
Citation:
Bayramov v. Canada (Citizenship and Immigration), 2019 FC 256 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
