The Federal Court reviewed the
refusal of Selvarajah Thedchanamoorthy’s temporary resident visa application
and the resulting five-year inadmissibility finding for misrepresentation under
paragraph 40(1)(a) of the IRPA. Although the officer had given Mr.
Thedchanamoorthy an opportunity to respond to concerns about three undisclosed
U.S. visa refusals, the officer later developed a separate concern about an
apparent inconsistency between his employment as a naval radio officer and his
denial of military service. The Court found that procedural fairness required
disclosure of this new concern.
Key Principle
A procedural fairness letter
concerning one possible misrepresentation does not necessarily satisfy fairness
where an officer later develops a separate reliability or credibility concern
that influences the decision. If a new concern arises from a perceived
inconsistency in the applicant’s information and contributes to rejecting an
innocent-error explanation or finding misrepresentation, the applicant must
have a meaningful opportunity to address that concern, even though temporary
resident visa applications ordinarily attract a minimal level of procedural
fairness.
Background
Mr. Thedchanamoorthy, a
68-year-old Sri Lankan citizen, and his wife had four children living in
Canada. They applied for TRVs in August 2017 to visit their daughter for the
birth of her third child.
IRCC issued a procedural fairness
letter because Mr. Thedchanamoorthy had failed to disclose three previous U.S.
visa refusals. His daughter, who had completed the applications, responded that
she had been unaware of those refusals and attributed the omission to her
father’s poor memory and extensive travel for work as a naval radio officer.
The officer rejected the
explanation and found misrepresentation. GCMS notes additionally observed that
Mr. Thedchanamoorthy had described employment as a naval radio operator while
answering “no” to a question asking whether he had served in the military,
militia, civil defence, security organization, or police force.
Court Findings
• New Military-Service Concern
Engaged Procedural Fairness
The Court found it difficult to
determine precisely how the military-service concern affected the officer’s
reasoning. However, the Minister acknowledged that it informed the decision.
The concern therefore sufficiently influenced the misrepresentation analysis to
engage procedural fairness obligations.
• Earlier Procedural Fairness
Letter Was Not Enough
The Court distinguished Alalami and Wang. Those cases established that an officer does not ordinarily
need to issue another fairness letter simply because an applicant’s explanation
for an identified misrepresentation is rejected. Here, however, the officer
developed a new concern about the reliability of the applicant’s answers based
on a perceived inconsistency that had never been put to him.
• Applicant Lost Opportunity
to Explain His Employment
Mr. Thedchanamoorthy argued that
the officer misunderstood “naval radio officer” as military employment when his
seaman’s record showed service aboard merchant vessels. The Court did not
decide whether that explanation was correct because it had never been presented
to the officer. That fact demonstrated why disclosure mattered: the applicant
had no opportunity to explain the apparent inconsistency before it influenced
the decision.
Outcome
The Federal Court granted
judicial review and remitted the TRV application to another officer for
redetermination. Having found procedural unfairness, the Court did not decide
the reasonableness arguments. No question was certified.
Case
Citation:
Thedchanamoorthy v. Canada (Citizenship and Immigration), 2018 FC 690 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
