Singh v. Canada (Citizenship and Immigration), 2020 FC 109 : Open Work Permit Refusal Set Aside Where Officer Raised Marriage-Genuineness Concern Without Giving Applicant an Opportunity to Respond

The Federal Court reviewed the refusal of Sahib Singh’s application for an open work permit. Mr. Singh, an Indian citizen residing in the United Arab Emirates, applied to join his wife in Canada while she was working pursuant to a Post-Graduation Work Permit. The visa officer refused the application because the officer was not satisfied that Mr. Singh would leave Canada at the end of his authorized stay. The officer relied on factors including his personal and financial assets and his family ties to Canada, India, and the United Arab Emirates.

In addition to those concerns, however, the officer also questioned the bona fides of Mr. Singh’s marriage. The Court found that this concern had not been disclosed to Mr. Singh and that he had not been provided with an opportunity to respond. Justice Heneghan concluded that this failure amounted to a breach of procedural fairness and was sufficient to set aside the decision.

Key Principle

Where a visa officer develops a concern about the bona fides or genuineness of an applicant’s marriage and that concern forms part of the assessment of an open work permit application, procedural fairness requires that the applicant be informed of the concern and given a meaningful opportunity to respond. An officer cannot rely on an undisclosed concern regarding the authenticity of a marital relationship without first allowing the applicant to provide an explanation or supporting evidence. A refusal reached through such an unfair process warrants judicial intervention regardless of whether other refusal grounds might otherwise have been available to the officer.

Background

Mr. Singh was a citizen of India who was residing in the United Arab Emirates when he submitted his application. His wife was already in Canada and was working under a valid Post-Graduation Work Permit. Mr. Singh therefore applied for an open work permit in order to join her in Canada.

The visa officer refused the application under subsection 200(1) of the Immigration and Refugee Protection Regulations. The officer concluded that Mr. Singh had not demonstrated that he would leave Canada at the end of the period authorized for his stay.

The refusal identified his accumulated personal and financial assets and his family ties to Canada, India, and the United Arab Emirates as relevant considerations. Mr. Singh challenged those findings before the Federal Court, arguing that the officer’s conclusion was unreasonable and had been reached without proper regard to the evidence submitted with his application.

More significantly, Mr. Singh argued that the officer had questioned the genuineness of his marriage without informing him that this was an issue. He submitted that because he had never been notified of this concern, he had no opportunity to provide explanations or additional evidence addressing the officer’s doubts about the relationship.

Court Findings

• Marriage-Genuineness Concern Required Disclosure

The Court found that the officer had raised a concern regarding whether Mr. Singh’s marriage was genuine. However, this issue had not been communicated to him before the refusal.

The Court treated this as materially different from an officer simply determining that an applicant had failed to satisfy an ordinary statutory requirement based on the documents already submitted. Once the officer questioned the bona fides of the marriage itself, procedural fairness required that Mr. Singh be made aware of that concern.

• Applicant Was Entitled to a Meaningful Opportunity to Respond

Justice Heneghan held that Mr. Singh should have been provided with an opportunity to answer the officer’s concern before a negative decision was made. Had the concern been disclosed, Mr. Singh could have submitted an explanation or additional evidence regarding his relationship with his wife.

By failing to notify him of the issue, the officer deprived him of the opportunity to address a matter that formed

Case Citation:

Singh v. Canada (Citizenship and Immigration), 2020 FC 109 (CanLII)