This
case concerns a judicial review of a visa officer’s refusal of the
Applicant’s work permit application on the basis of misrepresentation under section 40 of the IRPA. The Court granted the application because the
refusal process was procedurally unfair and the decision itself was
unreasonable.
Background
The
Applicant had applied for a work permit supported by a positive Labour Market
Impact Assessment (LMIA) issued by Employment and Skills Development Canada
(ESDC). One of the requirements for obtaining the LMIA was that ESDC had to be
satisfied that the job offer was genuine under the IRPR.
Despite
the positive LMIA, the visa office
independently investigated the employer’s legitimacy. The Officer conducted
extensive open-source checks, including internet and social media searches
relating to the company and its representative, examined online business
information, and performed a reverse telephone lookup. Based on these
investigations, the Officer became concerned that the employer was not genuine
and issued a Procedural Fairness Letter (PFL) alleging that the
Applicant may have relied on a fraudulent or improperly obtained job offer and may therefore be inadmissible for misrepresentation.
In
response, the Applicant explained how the job was obtained, highlighted that
ESDC had already interviewed and assessed the employer before issuing the LMIA,
and invited the Officer to directly contact the employer to address any
concerns. Nevertheless, the Officer concluded that the concerns remained
unresolved and refused the application.
Court
Findings
The Court found that the process breached procedural fairness. Misrepresentation findings carry serious consequences and therefore require a high degree of procedural fairness, including full disclosure of concerns and supporting extrinsic evidence. However, the Officer’s internal notes contained detailed concerns about the employer’s business address, online presence, inconsistent contact information, website discrepancies, and business legitimacy, while the PFL only vaguely alleged a potentially fraudulent offer of employment. The Court held that there was a significant gap between the actual concerns and what was communicated to the Applicant, depriving her of a meaningful opportunity to respond. The Court rejected the argument that merely providing the “gist” of concerns was sufficient.
The
Court also found the decision unreasonable because the Officer failed
to meaningfully engage with the positive LMIA. Although an Officer is not
legally bound by ESDC’s conclusion that a job offer is genuine, the LMIA
remained important contradictory evidence because it reflected the assessment
of another federal decision maker acting within its statutory authority after
directly verifying the employer. The Officer failed to explain whether the LMIA
was considered or why ESDC’s conclusion was rejected. Under Vavilov, decision
makers must address significant contradictory evidence and explain departures
from it. The Officer’s failure to do so rendered the decision unreasonable.
As a remedy, the Court allowed judicial review, set aside the refusal, and ordered redetermination by a different officer. The Court also directed that the application be assessed based on the LMIA’s validity at the time the work permit application was originally submitted and required full disclosure of any future misrepresentation concerns.
