Agyemang v. Canada (Citizenship and Immigration), 2026 FC 30 : Misrepresentation Finding Set Aside Where PFL Failed to Disclose the Basis of the Fraud Concern and Extrinsic Evidence

The Federal Court granted judicial review of a study permit refusal based on inadmissibility for misrepresentation under s 40(1) of the IRPA. The Court held that misrepresentation findings attract a high level of procedural fairness, regardless of the type of underlying immigration application. This required full disclosure of the Officer’s concerns and of extrinsic evidence giving rise to those concerns. Pasted text

Key Principle

Where an application is refused because of s 40(1) misrepresentation, the applicant must be given a meaningful opportunity to know and respond to the case against them. The Court held that a PFL must disclose the Officer’s actual concerns reflected in the file notes, as well as relevant extrinsic evidence that generated those concerns. The Court rejected the more limited “gist” approach to disclosure in the misrepresentation context. Pasted text

Background

The Applicant applied for a study permit to attend Niagara College and submitted a bank statement from her father’s Prudential Bank account as evidence of financial support. IRCC issued a PFL expressing concerns about the genuineness of the bank statement and asking the Applicant to explain how she obtained it and why it was submitted. Pasted text

The Applicant responded and provided a letter from a bank operations manager confirming the account, its opening date and balance. IRCC had independently contacted the bank. The bank initially stated that it could not confirm the authenticity of the stamp on the statement and later advised that the statement was “fake” because the signature and stamp did not originate from the identified branch. None of this extrinsic evidence was disclosed to the Applicant before the refusal. Pasted text

Court Findings

• High procedural fairness applies to s 40 findings: The Court applied the Baker factors and concluded that misrepresentation determinations require a high level of procedural fairness because of their specific statutory requirements, finality, and severe consequences, including the five-year prohibition period and stigma associated with dishonesty. Pasted text Pasted text

• Full disclosure required: The PFL failed to disclose that the bank’s concerns specifically related to the authenticity of the stamp. The Court held that the Applicant was entitled to know the Officer’s concerns and the extrinsic evidence that generated them. The Court expressly rejected applying the “gist” approach as a general standard for s 40 misrepresentation findings. Pasted text

• Extrinsic evidence must generally be disclosed: Where information from outside the application gives rise to specific misrepresentation concerns, it should be disclosed unless there is a valid justification for withholding it, such as privilege or national security. Pasted text

• Officer improperly relied on the bank’s conclusion: The bank’s response was ambiguous as to which document was “fake.” Nevertheless, the Officer concluded that the Applicant had submitted two fraudulent documents. The Court found this amounted to unjustified reliance on extrinsic evidence and an unfair fettering of the Officer’s discretion. Pasted text

Outcome

The Court found both a procedural fairness breach and an unreasonable decision. The refusal was set aside and remitted to a different officer. The new decision maker was directed to allow updated submissions and to provide full disclosure of any s 40(1) concerns and disclosable extrinsic evidence, followed by a reasonable opportunity to respond. Pasted text

Case Citation:

Agyemang v. Canada (Citizenship and Immigration), 2026 FC 30 (CanLII)