Du v. Canada (Citizenship and Immigration), 2022 FC 864 : Express Entry PR Refusal Set Aside Where Officer Misunderstood Salary Evidence and Fairness Response

The Federal Court reviewed Xiaokang Du’s Canadian Experience Class PR refusal. The officer was not satisfied that the applicant had adequately established his employment income. The Court found the decision unreasonable because the officer’s reasons did not demonstrate an understanding of the applicant’s explanation that the higher salary would only commence after he obtained PR.

Key Principle

When an applicant provides a complete response to a procedural fairness concern, the officer must meaningfully engage with that response and demonstrate an understanding of the evidence. A refusal is unreasonable where the reasons appear to proceed on a misunderstanding of a material distinction between the applicant’s past employment terms and a future conditional employment offer.

Background

The applicant worked in Canada from 2017 to 2019 as an Administrative Assistant, earning approximately $25,480 annually. His employer later offered him permanent employment supported by a positive LMIA, with a salary of $40,950 that would begin only after he obtained PR. IRCC questioned his income and requested additional documentation, which the applicant supplied.

Court Findings

• Officer Appeared to Misunderstand the Two Salary Figures

The applicant’s prior employment salary and the salary contained in the permanent job offer applied to different periods and circumstances. The applicant had earned approximately $25,480 while working under his temporary authorization, whereas the $40,950 salary was expressly conditional on him obtaining PR and commencing the offered permanent position.

• Procedural Fairness Response Directly Explained the Difference

After receiving the fairness letter, the applicant’s consultant provided the requested bank statements and employment information, together with the LMIA. The response specifically emphasized that the $40,950 salary was not the applicant’s historical salary and would become payable only if permanent residence was granted.

• Applicant Provided a Full Response to IRCC’s Concerns

The Court found that the applicant had fully responded to the procedural fairness request. The problem was therefore not an evidentiary failure by the applicant. Rather, the reasons did not demonstrate that the officer understood or meaningfully considered the explanation and supporting documents submitted in response.

• Reasons Did Not Demonstrate Engagement With Material Evidence

Despite the applicant’s explanation, the officer remained dissatisfied with the evidence concerning income and refused the CEC application. The Court held that the reasons did not show why the explanation was rejected or how the evidence failed to resolve the officer’s concern. This undermined the transparency and intelligibility required by Vavilov.

• Earlier Employer Interview Did Not Cure the Defect

The Minister relied on notes from another officer’s telephone conversation with the employer and argued that those notes may have triggered the fairness letter. The Court held that what prompted the letter was not determinative. The relevant question was whether the deciding officer reasonably considered the applicant’s subsequent response.

• Court Would Not Rely on New Affidavit Evidence

The applicant filed affidavits containing evidence that had not been before the officer. The Court excluded them because they did not fall within the recognized exceptions permitting new evidence on judicial review. The reasonableness assessment therefore remained focused on the administrative record actually before the officer.

sOutcome

The Federal Court granted judicial review, set aside the CEC PR refusal, and remitted the application to a different officer for redetermination. Because the unreasonableness finding was dispositive, the Court did not determine the applicant’s separate procedural fairness argument. No question was certified.

Case Citation:

Du v. Canada (Citizenship and Immigration), 2022 FC 864 (CanLII)