The Federal Court allowed
judicial review of a work permit refusal based on a finding of
misrepresentation under s 40(1)(a) of the IRPA. The Court held that the Officer
breached procedural fairness by failing to disclose the specific facts
underlying the concern that the Applicant’s employment letter had been altered.
Simply stating that the document appeared fraudulent did not give the Applicant
a meaningful opportunity to respond. Pasted text
Key Principle
In a misrepresentation case, the
applicant is entitled to a higher degree of procedural fairness because of the
serious consequences of a s 40 finding. A PFL must disclose the facts that
led to the concern, rather than merely communicating the officer’s
conclusion. However, the officer is not required to disclose every piece of
extrinsic investigative evidence where that evidence did not form the basis of
the preliminary misrepresentation concern. Pasted text
Background
The Applicant, a citizen of
Vietnam, applied for a work permit under the Temporary Foreign Worker Program
based on a positive LMIA. She declared employment as a cook at a Vietnamese
restaurant and submitted an employment contract and employment letter confirming
her work history.
An IRCC Risk Assessment Unit
officer reviewed the employment letter and identified apparent Photoshop
alterations. The officer also noted that the document lacked an official seal
and was unable to locate open-source information about the restaurant or reach
the employer by telephone. Pasted text
The PFL stated only that the
Officer was concerned that the Applicant had submitted a fraudulent employment
document. In response, the Applicant maintained that the letter was genuine and
provided an employer confirmation letter, bank statements showing salary
payments, and photographs purporting to show her working at the restaurant.
Pasted text
The Officer ultimately found that
the dates and employment period on the letter had been photoshopped and gave
little weight to the additional financial and photographic evidence. Pasted
text
Court Findings
• The PFL disclosed only a
conclusion. The Court held that stating the employment letter was suspected
to be fraudulent was insufficient. The significant facts underlying the concern
were that the document appeared to have been altered, specifically the date of
the document and the period of employment. Those facts were not disclosed in
the PFL. Pasted text
• The Applicant could not
meaningfully respond. The Applicant responded directly to the allegation
that the document was fraudulent by asserting that it was genuine. However, if
the Officer wanted an explanation for the apparent alterations, the Applicant
needed to be told that this was the actual concern. Pasted text
• Not every investigative
detail had to be disclosed. The Court distinguished Chahal. The
external investigations into the employer did not form the basis of the
preliminary misrepresentation concern. Therefore, the Officer was not required
to disclose those investigations in the PFL. Pasted text
• The “gist” must contain the
underlying facts. Although jurisprudence requires disclosure of the “gist”
of the concern rather than every detail, the gist must still communicate the
facts that generated the concern. A bare conclusion is insufficient where it
prevents a meaningful response. Pasted text
Outcome
The Court found that the
Applicant was denied procedural fairness because the Officer failed to disclose
the facts underlying the misrepresentation concern and failed to provide a
meaningful opportunity to respond. The decision was set aside and remitted to a
different decision maker for redetermination. Pasted text
Case
Citation:
Nguyen v. Canada (Citizenship and Immigration), 2025 FC 1894 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
