Shen v. Canada (Citizenship and Immigration), 2024 FC 1997 : Federal Court Set Aside Misrepresentation Finding After IRCC Failed to Disclose Extrinsic Evidence and Denied a Meaningful Opportunity to Respond

The Federal Court reviewed IRCC’s refusal of Meiling Shen’s work permit application and the accompanying finding of inadmissibility for misrepresentation under paragraph 40(1)(a) of the Immigration and Refugee Protection Act. The visa office contacted the applicant’s former employer, who allegedly denied preparing or signing her employment verification letter. Although the officer relied heavily on this verification, the procedural fairness letter did not disclose that an investigation had occurred or provide any information about how the adverse evidence was obtained. The Court granted judicial review because the applicant was not given a meaningful opportunity to respond.

Key Principle

Where an officer relies on extrinsic evidence obtained through an employment verification investigation, procedural fairness requires more than a general statement that a document is suspected to be fraudulent. The applicant must receive sufficient information about the source, nature, and substance of the adverse evidence to understand the case to meet and respond meaningfully. The level of disclosure and fairness required is especially high where the decision results in a five-year misrepresentation finding and prevents the applicant from seeking permanent residence during that period.

Background

The applicant submitted a work permit application supported by an employment verification letter.

The visa office contacted her former employer. The employer allegedly denied preparing or signing the letter. However, the Certified Tribunal Record contained no description of why the investigation was initiated, how it was conducted, who was contacted, or precisely what information was obtained.

IRCC sent the applicant a procedural fairness letter stating that the employment letter appeared fraudulent and that her employment history may have been fabricated. The letter did not identify the source of the concern or disclose that the former employer had allegedly denied the letter.

The applicant responded by explaining the circumstances surrounding the end of her employment and providing contact information for another person who could verify her employment.

The officer did not contact the alternative reference and refused the application for misrepresentation, assigning significant weight to the undisclosed verification efforts.

Court Findings

• Applicant Did Not Know the Case to Meet

The applicant knew only that the officer suspected fraud. She was not told that an employment investigation had occurred or what information obtained during that investigation supported the allegation.

• Extrinsic Evidence Required Meaningful Disclosure

Because the officer relied on information obtained outside the application record, fairness required disclosure of sufficient details to permit an informed response.

• General Allegation Was Insufficient

The applicant could not meaningfully challenge the employer’s alleged denial without knowing who was contacted, what questions were asked, or what response was received.

• Alternative Verification Was Not Pursued

The applicant supplied another employment reference who could confirm her work history. The officer’s failure to pursue that evidence further contributed to the breach of fairness.

Outcome

The Federal Court granted judicial review, quashed the refusal and misrepresentation finding, and returned the work permit application to a different officer for redetermination. The Court did not address the separate reasonableness arguments. No question was certified.

Case Citation:

Shen v. Canada (Citizenship and Immigration), 2024 FC 1997 (CanLII)