Mohammadizadeh v. Canada (Citizenship and Immigration), 2024 FC 1276 : Misrepresentation Finding Set Aside After Officer Failed to Consider Applicant’s Attempt to Withdraw Fraudulent Work Permit Application

The Federal Court allowed an application for judicial review of a work permit refusal and the accompanying finding of inadmissibility for misrepresentation under section 40(1)(a) of the Immigration and Refugee Protection Act (IRPA). The applicant unknowingly submitted a fraudulent Labour Market Impact Assessment (LMIA) through an unauthorized immigration agency in Iran and later attempted to withdraw his application months before IRCC raised any concerns about misrepresentation. The Court held that the officer’s failure to meaningfully consider the applicant’s withdrawal request rendered the decision unreasonable, particularly given the serious consequences of a five-year inadmissibility finding.

Key Principle

While applicants remain responsible for the accuracy of information submitted in immigration applications, visa officers must meaningfully consider evidence relevant to the innocent misrepresentation exception. Where an applicant attempts to withdraw an application before receiving notice of a possible misrepresentation, that conduct may be relevant to assessing due diligence and whether the applicant honestly and reasonably believed no misrepresentation had occurred. Officers must address such evidence before imposing the severe consequences associated with section 40 of the IRPA.

Background

The applicant retained an immigration agency in Iran to prepare and submit a work permit application. Several months after filing the application, he became concerned about the legitimacy of the services he had received and attempted to withdraw the application. Approximately five months later, IRCC issued a procedural fairness letter advising that the LMIA supporting the application appeared to be fraudulent. In response, the applicant explained that he had been defrauded by the immigration agency, which had allegedly deceived hundreds of other individuals and was the subject of criminal proceedings and an Interpol Red Notice in Iran. Despite this evidence, the officer concluded that the applicant remained responsible for ensuring the authenticity of the documents submitted and found him inadmissible for misrepresentation.

Court Findings

• A Pre-emptive Withdrawal Request May Be Relevant to Innocent Misrepresentation

The Court held that the officer failed to address a critical aspect of the applicant’s case—his attempt to withdraw the work permit application months before IRCC identified the alleged misrepresentation. Unlike cases where applicants seek to withdraw applications only after misrepresentation concerns are raised, the applicant’s withdrawal request predated the procedural fairness letter and could have been relevant to assessing whether he exercised due diligence and honestly believed the application was inaccurate. The absence of any analysis of this issue rendered the decision unreasonable.

• Incomplete Record Prevented a Reasonable Assessment

The Court noted that the Certified Tribunal Record contained only a brief and ambiguous GCMS notation confirming that the withdrawal request had been received. It was unclear whether the request had been accepted, refused, or otherwise processed. Given the lack of information about such a significant issue, the officer could not reasonably ignore the withdrawal request when determining whether the applicant had engaged in misrepresentation.

• Existing Jurisprudence on Withdrawal Did Not Apply

The Minister relied on authorities holding that applicants cannot avoid a misrepresentation finding by withdrawing an application after IRCC detects the deception. The Court distinguished those cases, emphasizing that the applicant attempted to withdraw his application approximately five months before IRCC issued its procedural fairness letter. Accordingly, the policy concerns identified in earlier authorities did not apply to these facts.

Outcome

The Federal Court allowed the application for judicial review, set aside the finding of inadmissibility for misrepresentation, and remitted the matter to a different decision-maker for redetermination. The Court also directed that the applicant be given an opportunity to provide further evidence and submissions. The decision confirms that an applicant’s attempt to withdraw an application before any misrepresentation concerns arise may be a highly relevant consideration in assessing due diligence and the innocent misrepresentation exception under section 40 of the IRPA.

Case Citation:

Mohammadizadeh v. Canada (Citizenship and Immigration), 2024 FC 1276 (CanLII)