Khayati v. Canada (Citizenship and Immigration), 2024 FC 1402 : Work Permit Refusal Set Aside Due to Unreasonable Employment Misrepresentation Finding

The Federal Court reviewed IRCC’s refusal of Sasan Khayati’s work permit application and the accompanying five-year misrepresentation finding. The applicant claimed work experience as a painter and foreman with an Iranian painting company. After an unidentified person contacted during a verification call denied knowing him, IRCC concluded that his employment letter was fraudulent. The Court granted judicial review because the officer failed to explain the verification process or meaningfully assess the extensive documents submitted in response.

Key Principle

A finding of misrepresentation carries serious consequences and must be supported by clear and convincing evidence. Where an officer relies on an employment verification call, the record should provide enough detail to establish who was contacted, how the contact information was obtained, and why that source was reliable. The officer must also meaningfully engage with contradictory evidence, particularly government-issued employment records and additional letters from the purported employer, rather than simply stating that concerns remain unresolved.

Background

The applicant applied for a work permit to work as a painting supervisor in Canada. He submitted letters confirming that he had worked as a painter’s assistant, professional painter, and foreman in Iran.

During open-source verification, an officer reportedly contacted someone claiming to be the company’s owner. That person denied knowing the applicant and did not confirm the employment letter.

IRCC issued a procedural fairness letter stating generally that the employment records may be fraudulent, but it did not disclose the verification call or identify the person contacted.

The applicant responded with further employer letters, employment contracts, payslips, project contracts, insurance records, and Iranian Social Security documents confirming his employment.

IRCC nevertheless found that the initial employment letter was fraudulent and imposed a five-year inadmissibility period for misrepresentation.

Court Findings

• Verification Process Was Insufficiently Explained
The Court held that the GCMS notes failed to identify the telephone number used during the employment verification, the identity of the person contacted, or the steps taken to confirm that the individual was in fact the employer. Unlike earlier cases where detailed safeguards supported the reliability of verification calls, the absence of this information made it impossible to understand why the officer relied so heavily on the telephone conversation.

• Officer Failed to Meaningfully Assess the Applicant’s Response
The applicant submitted extensive evidence in response to the procedural fairness letter, including additional employer letters, employment contracts, payslips, project contracts, and government-issued Iranian Social Security records confirming his employment. The Court found that the officer failed to explain why this substantial documentary evidence did not overcome the concerns raised during the verification process.

• Contradictory Employer Evidence Required Analysis
The Court found it unreasonable that the officer failed to address the contradiction between the verification call and the subsequent employer letters. If the same employer had supposedly denied knowing the applicant during the telephone call, the officer was required to explain why later letters from that employer confirming the applicant’s employment were rejected. Ignoring this inconsistency rendered the reasoning deficient.

• Reliance on an Unidentified “Reputable Source” Was Unjustified
The reviewing officer stated that greater weight was given to information from a “reputable source” because of its historical reliability. The Court held that this unexplained reference did not identify the source or provide any basis for assessing its reliability, preventing meaningful judicial review of the officer’s reasoning.

• Misrepresentation Finding Was Not Supported by Clear and Convincing Reasons
The Court emphasized that a finding of misrepresentation carries serious consequences, including a five-year inadmissibility period, and therefore requires careful analysis supported by clear and convincing evidence. The officer effectively leapt from an unexplained verification call to a conclusion of fraud without transparently weighing the contradictory documentary evidence, rendering the decision unreasonable.

Outcome

The Federal Court granted judicial review, set aside the refusal and misrepresentation finding, and returned the application to a different officer for redetermination. No question was certified.

Case Citation:

Khayati v. Canada (Citizenship and Immigration), 2024 FC 1402 (CanLII)