Likhi v. Canada (Citizenship and Immigration), 2020 FC 171 : Misrepresentation Finding Set Aside Where Applicant Was Not Given a Fair Opportunity to Address Marriage-Genuineness Concerns

The Federal Court reviewed Sakshi Likhi’s spousal open work permit refusal and the accompanying finding of misrepresentation under paragraph 40(1)(a) of the IRPA. Although the work permit issue later became moot because her husband no longer held status in Canada, the five-year misrepresentation finding remained at issue. The Court found the process procedurally unfair and the decision unreasonable because Ms. Likhi was not adequately informed that the genuineness of her marriage was the focus of the interview and was not given a meaningful opportunity to provide responsive evidence.

Key Principle

Although temporary work permit applications generally attract a relatively low degree of procedural fairness, a misrepresentation finding under paragraph 40(1)(a) attracts greater procedural protection because of its serious consequences, including five years of inadmissibility. Where an officer’s concern goes beyond insufficient evidence and involves credibility, authenticity, or truthfulness, the applicant must be clearly informed of the concern and given a meaningful opportunity to respond.

Background

Ms. Likhi and Anand Sethi entered into an arranged marriage after being introduced through a matrimonial website. They held an engagement ceremony and civil marriage in July 2018, followed by a larger social wedding and reception later that year.

Ms. Likhi applied for an open work permit based on her husband’s employment in Canada. IRCC had concerns about the rapid progression of the marriage, photographs, communications, and the marriage documentation. GCMS notes recommended an interview specifically to assess the bona fides of the relationship, but Ms. Likhi was not told this was the interview’s purpose.

During separate interviews, officers identified discrepancies concerning travel dates, family events, wedding photographs, and Mr. Sethi’s education. When additional photographs were requested, Ms. Likhi was not permitted to retrieve them from her phone or submit them afterward.

Court Findings

• Higher Procedural Fairness Applied

The Court distinguished an ordinary work permit refusal from a misrepresentation finding. Because the latter carries a five-year bar and significant consequences, a higher degree of fairness was required.

• Credibility and Insufficiency Are Different

The Court emphasized that insufficient evidence does not automatically amount to misrepresentation. Here, the officers did not merely find the evidence inadequate. They disbelieved Ms. Likhi’s evidence and explanations, triggering a duty to disclose those credibility concerns and provide a meaningful opportunity to respond.

• Applicant Was Not Given a Fair Opportunity to Respond

The GCMS notes contained a “DO NOT DISCLOSE” direction concerning the marriage-genuineness concerns. The Court found that Ms. Likhi should either have been told beforehand that the interview concerned the bona fides of her marriage or been permitted to make post-interview submissions.

The Senior Officer also failed to meaningfully address her explanations regarding the multiple marriage ceremonies, wedding photographs, and her knowledge of her husband’s life.

Outcome

The Federal Court granted judicial review, set aside the misrepresentation finding, and remitted the matter to a different officer for redetermination after inviting Ms. Likhi to provide additional submissions.

Case Citation:

Likhi v. Canada (Citizenship and Immigration), 2020 FC 171 (CanLII)