Hai Mai v. Canada (Citizenship and Immigration), 2023 FC 1063 : Misrepresentation Finding Upheld After Applicant Failed to Disclose Cancelled Australian Visa and Unlawful Stay

The Federal Court reviewed the refusal of Ngoc Hai Mai’s work permit application and the accompanying five-year inadmissibility finding for misrepresentation. The applicant had answered “no” when asked whether he had ever been refused a visa or permit, denied entry, or ordered to leave another country, despite an Australian study visa having been cancelled. The Court upheld the officer’s decision.

Key Principle

An applicant must disclose a prior foreign visa cancellation where the application question reasonably captures that immigration history. A second procedural fairness letter is not required merely because further information confirms the same concern already identified in the first letter, and an officer may reject an unsupported explanation where the applicant had a full opportunity to respond.

Background

The applicant’s Australian study visa was cancelled after he stopped attending a registered course, and he remained there unlawfully until 2020. After receiving a fairness letter, he said he knew of the overstay but was unaware that the visa had been formally cancelled because his agent had not told him.

Court Findings

• No Second Procedural Fairness Letter Was Required

Further information from Australian authorities showed that the applicant had been notified both that his visa was under review and later that it had been revoked. The Court held that this did not create a new misrepresentation allegation because the original fairness letter had already clearly identified the undisclosed Australian visa cancellation as the officer’s concern.

• Applicant Had a Meaningful Opportunity to Respond

The fairness letter expressly identified the visa cancellation and unlawful stay in Australia, giving the applicant a direct opportunity to explain his answer. His response was considered, but it provided no supporting evidence or additional detail capable of resolving the officer’s concern about the accuracy of his immigration history.

• Visa Cancellation Fell Within the Application Question

The applicant argued that the form did not specifically ask whether he had overstayed abroad. The Court rejected this characterization because the relevant question asked about prior visa or permit refusals and related immigration consequences, and existing jurisprudence supported interpreting it as requiring disclosure of the revoked Australian study visa.

• Explanation of Ignorance Could Reasonably Receive Little Weight

The applicant said his agent never told him about the cancellation and that he lacked an online account to verify his status. The officer was entitled to give this explanation little weight, especially where Australian records indicated that notices had been provided directly regarding both the review and revocation of his visa.

• Misrepresentation Was Material

The undisclosed visa cancellation concerned the applicant’s prior immigration compliance and was relevant to the assessment of his work permit application. The delegated officer reasonably concluded that withholding this information could have induced an error in the administration of the immigration process and therefore met the statutory materiality requirement.

• Reasons Were Adequate and Intelligible

The Court rejected the argument that the decision lacked adequate reasons. Read together, the decision and GCMS notes provided a coherent explanation of the concern, the response received, the weight assigned to that response, and why the resulting misrepresentation finding was justified on the record.

Outcome

The Federal Court dismissed judicial review and upheld the work permit refusal and five-year inadmissibility finding for misrepresentation. No question was certified.

Case Citation:

Hai Mai v. Canada (Citizenship and Immigration), 2023 FC 1063 (CanLII)