Ø Introduction
The Federal Court reviewed a finding of misrepresentation
that resulted in the refusal of a Temporary Resident Visa and open work permit.
The Court upheld the decision because the applicant and her
employer gave materially different answers during parallel employment
verification interviews, providing a reasonable basis for the officer to
conclude that the employment documents were not genuine.
Ø Key Principle
A misrepresentation finding under section 40(1)(a) of the
IRPA must be supported by clear and convincing evidence and is assessed
on a balance of probabilities.
Where an applicant and employer provide directly
contradictory answers to simple questions concerning employment, an officer may
reasonably rely on those discrepancies in determining whether the employment
information was genuine.
A procedural fairness letter provides the applicant with an
opportunity to explain the discrepancies, but the officer is not required to
accept an explanation that does not adequately address the concerns.
Ø Background
The applicant, an Indian citizen, applied for a TRV and open
work permit to accompany her husband, who was studying in Canada.
She claimed employment with Euclide Software Solutions and
provided employment documents signed by the company’s CEO. During a parallel
verification process, the employer stated that she was working in the office
and reported to a team lead named Manoj.
When the applicant was contacted separately, she stated that
she was a senior web developer, reported to a project manager named Ravi, and
was staying with her in-laws.
The officer sent a procedural fairness letter identifying
the inconsistent employment information. The applicant responded that she had
been travelling with her mother-in-law and that she had been permitted to work
from home. She also provided another letter from the employer confirming her
employment.
Ø Court Findings
The Federal Court found that the misrepresentation finding
was reasonable.
The Court emphasized that the discrepancies concerned simple
and direct questions. The applicant and her employer gave different answers
about who she reported to and where she was located. Both answers could not be
correct.
The Court found that the officer was entitled to rely on the
employer’s answers because the employer’s CEO had signed the employment
documents submitted by the applicant. The applicant’s later explanation that
she was working from home or travelling did not adequately explain the
conflicting answers about her reporting structure.
The Court also rejected the procedural fairness arguments.
The applicant had received a fairness letter clearly identifying the concern
and had an opportunity to respond. There was no requirement that the same
officer conduct both parallel interviews, repeatedly call the employer, or
conduct a further interview with the applicant.
The Court confirmed that officers may rely on information
recorded by other officers in GCMS notes. Because the applicant had not
established a basis for questioning the accuracy of those notes, the
decision-maker was entitled to rely on them.
The Court also found that the five-year consequences of a
misrepresentation finding did not make the finding itself unreasonable,
particularly because the PFL had expressly warned the applicant about the
potential five-year inadmissibility period.
Ø Outcome
The Federal Court dismissed the application for judicial
review and upheld the finding of misrepresentation and the resulting
five-year inadmissibility period.
Case Citation:
Hehar v. Canada (Citizenship and Immigration), 2016 FC 1054 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
