Kaur v. Canada (Citizenship and Immigration), 2020 FC 244 : TRV Misrepresentation Finding Quashed Where Applicant Did Not Receive a Fair Opportunity to Respond, Rendering Subsequent Work Permit Refusal Unreasonable

The Federal Court reviewed two related decisions concerning Jasmeen Kaur. The first refused a Temporary Resident Visa based on misrepresentation under subsection 40(1) of the IRPA. The second refused her work permit application because she remained inadmissible as a result of that earlier misrepresentation finding.

Ms. Kaur maintained that she had never authorized the TRV application, did not know it had been filed, and never received the procedural fairness letter concerning alleged fraudulent information. The Court found that procedural fairness had not been satisfied in the TRV decision. Because the work permit refusal depended entirely on that misrepresentation finding, it could not stand either.

Key Principle

Where a finding of misrepresentation under section 40 of the IRPA is based on alleged fraudulent information, procedural fairness requires that the applicant receive a meaningful opportunity to know and answer the case against them. If the evidence does not establish that the procedural fairness letter was actually delivered or otherwise brought to the applicant’s attention, a serious misrepresentation finding may be procedurally unfair. A later immigration refusal that depends entirely on that defective finding is likewise unreasonable and cannot stand.

Background

Ms. Kaur, a citizen of India, visited an immigration consultant’s office in December 2017 to discuss a possible Canadian visitor visa. She said she did not sign a retainer, did not pay a fee, and never authorized the consultant to file an application. She did, however, leave supporting documents including her passport copy, employment letter, resume, salary information, and tax return.

A TRV application in her name was received by the Canadian High Commission in New Delhi shortly afterward. Ms. Kaur said she did not know the application had been submitted.

IRCC later issued a procedural fairness letter alleging fraudulent information in the application. Ms. Kaur swore that she never received that letter.

The TRV was then refused for misrepresentation. In 2019, Ms. Kaur applied for a work permit as a British Columbia provincial nominee. That application was refused because the earlier misrepresentation finding made her inadmissible.

 Court Findings

• Applicant Was Not Shown to Have Received the Procedural Fairness Letter

The Court focused on whether Ms. Kaur had actually been given an opportunity to answer the officer’s concerns.

The Respondent filed no affidavit explaining how the procedural fairness letter had been sent or establishing that it had reached Ms. Kaur. There was therefore no evidence contradicting her sworn evidence that she had not received it.

The Court concluded that she had not been given a meaningful opportunity to respond before the misrepresentation finding was made.

• Serious Misrepresentation Finding Could Not Stand

The record also contained evidence suggesting that documents in the TRV application were false or inconsistent with Ms. Kaur’s actual information. She alleged that signatures were forged and that basic personal, employment, family, and financial information was incorrect.

A solemn declaration submitted with the TRV application also purported to bear the name of an Ontario lawyer, who swore that he had neither prepared nor signed it.

Against that factual background, the absence of a fair opportunity to respond was especially significant.

• Work Permit Refusal Fell With the TRV Decision

The work permit refusal rested entirely on the earlier finding that Ms. Kaur was inadmissible for misrepresentation.

Once the misrepresentation decision was found procedurally unfair, the factual foundation of the work permit refusal disappeared. The Court therefore found that the work permit decision was based on an unreasonable factual premise and could not stand.

• Certified Question Was Declined

Ms. Kaur proposed a broader question about whether a foreign national can be inadmissible for misrepresentation where an unauthorized third party files an application without the foreign national’s knowledge.

The Court declined to certify the question because the case was resolved on its particular facts and procedural fairness concerns rather than on that broader legal issue.

Outcome

The Federal Court allowed both judicial review applications. The TRV misrepresentation decision was quashed, and the work permit refusal was set aside and remitted to a different officer for redetermination. No question of general importance was certified.

Case Citation:

Kaur v. Canada (Citizenship and Immigration), 2020 FC 244 (CanLII)