Odobo v. Canada (Citizenship and Immigration), 2026 FC 49 : Misrepresentation Refusal Set Aside Where PFL Failed to Disclose the Officer’s Detailed Concerns About a Fraudulent Job Offer

The Federal Court granted judicial review of a work permit refusal based on s. 40 misrepresentation. The Court found both a breach of procedural fairness and an unreasonable decision. The PFL disclosed only a generic concern that the Applicant’s employment offer was fraudulent, while the officer’s GCMS notes contained extensive investigative findings that were never disclosed. Pasted text

Key Principle

Misrepresentation findings under s. 40 of the IRPA require a high level of procedural fairness, regardless of the underlying immigration application. This requires full disclosure of the decision maker’s misrepresentation concerns, including relevant extrinsic evidence that gave rise to those concerns, unless there is a justification for limiting disclosure. Pasted text

The Court emphasized that a PFL cannot merely provide a generic allegation or the “gist” of the concern where the officer has identified specific factual circumstances supporting the alleged misrepresentation. The applicant must be given sufficient information to meaningfully respond. Pasted text

Background

The Applicant applied for a work permit supported by a positive LMIA. The LMIA had been issued by ESDC, which had statutory responsibility for assessing whether the employment offer was genuine. Pasted text

Despite the positive LMIA, the visa officer independently investigated the employer through internet and social-media searches, searches concerning the employer’s address and representative, and a reverse lookup of the employer’s telephone number. The investigation produced numerous concerns regarding the employer’s business address, online presence, website, telephone numbers and corporate relationships. Pasted text

However, the PFL merely stated that the officer was concerned that the Applicant had submitted a “fraudulent or inappropriately obtained” letter of offer. The Applicant responded by explaining how she obtained the position, pointing out that ESDC had interviewed the employer before issuing the LMIA, and inviting the officer to contact the employer. Pasted text

Court Findings

• PFL was procedurally unfair: The Court found a significant gap between the detailed concerns recorded in the officer’s notes and the generic allegation communicated to the Applicant. The PFL effectively provided little more than advance notice of the eventual refusal and did not permit a meaningful response to the actual concerns. Pasted text

• Full disclosure required for s. 40 concerns: The Court relied on Agyemang and stressed that decision makers must disclose their material misrepresentation concerns and relevant extrinsic evidence. The Court rejected an approach that permits negligible disclosure merely because the “gist” of the concern has technically been communicated. Pasted text

• Positive LMIA was relevant contradictory evidence: Although an officer is not bound by a positive LMIA and may independently assess the genuineness of the employment offer, the LMIA represented the conclusion of another federal decision maker who had directly contacted the employer. The officer therefore had to acknowledge and address this contradictory evidence. Pasted text

• Failure to address the LMIA was unreasonable: The officer’s reasons did not explain the departure from ESDC’s conclusion that the employment offer was genuine. This was an evidentiary constraint that the officer was required to address under Vavilov. Pasted text

Outcome

The Court granted judicial review and set aside the work permit refusal. The matter was remitted to a different officer. The redetermination must treat the LMIA as valid as it existed when the work permit application was received. The Applicant must also be allowed to update submissions and evidence, and any new s. 40 concerns and supporting extrinsic evidence must be disclosed in full with reasonable time to respond.

Case Citation:

Odobo v. Canada (Citizenship and Immigration), 2026 FC 49 (CanLII)