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Thedchanamoorthy v. Canada (Citizenship and Immigration), 2018 FC 690 : Decision Set Aside After Officer Raised Undisclosed Military Service Concern in TRV Misrepresentation Case

The Federal Court reviewed the refusal of Selvarajah Thedchanamoorthy’s temporary resident visa application and the resulting five-year inadmissibility finding for misrepresentation under paragraph 40(1)(a) of the IRPA. Although the officer had given Mr. Thedchanamoorthy an opportunity to respond to concerns about three undisclosed U.S. visa refusals, the officer later developed a separate concern about an apparent inconsistency between his employment as a naval radio officer and his denial of military service. The Court found that procedural fairness required disclosure of this new concern.

Key Principle

A procedural fairness letter concerning one possible misrepresentation does not necessarily satisfy fairness where an officer later develops a separate reliability or credibility concern that influences the decision. If a new concern arises from a perceived inconsistency in the applicant’s information and contributes to rejecting an innocent-error explanation or finding misrepresentation, the applicant must have a meaningful opportunity to address that concern, even though temporary resident visa applications ordinarily attract a minimal level of procedural fairness.

Background

Mr. Thedchanamoorthy, a 68-year-old Sri Lankan citizen, and his wife had four children living in Canada. They applied for TRVs in August 2017 to visit their daughter for the birth of her third child.

IRCC issued a procedural fairness letter because Mr. Thedchanamoorthy had failed to disclose three previous U.S. visa refusals. His daughter, who had completed the applications, responded that she had been unaware of those refusals and attributed the omission to her father’s poor memory and extensive travel for work as a naval radio officer.

The officer rejected the explanation and found misrepresentation. GCMS notes additionally observed that Mr. Thedchanamoorthy had described employment as a naval radio operator while answering “no” to a question asking whether he had served in the military, militia, civil defence, security organization, or police force.

Court Findings

• New Military-Service Concern Engaged Procedural Fairness

The Court found it difficult to determine precisely how the military-service concern affected the officer’s reasoning. However, the Minister acknowledged that it informed the decision. The concern therefore sufficiently influenced the misrepresentation analysis to engage procedural fairness obligations.

• Earlier Procedural Fairness Letter Was Not Enough

The Court distinguished Alalami and Wang. Those cases established that an officer does not ordinarily need to issue another fairness letter simply because an applicant’s explanation for an identified misrepresentation is rejected. Here, however, the officer developed a new concern about the reliability of the applicant’s answers based on a perceived inconsistency that had never been put to him.

• Applicant Lost Opportunity to Explain His Employment

Mr. Thedchanamoorthy argued that the officer misunderstood “naval radio officer” as military employment when his seaman’s record showed service aboard merchant vessels. The Court did not decide whether that explanation was correct because it had never been presented to the officer. That fact demonstrated why disclosure mattered: the applicant had no opportunity to explain the apparent inconsistency before it influenced the decision.

Outcome

The Federal Court granted judicial review and remitted the TRV application to another officer for redetermination. Having found procedural unfairness, the Court did not decide the reasonableness arguments. No question was certified.

 

Case Citation:

Thedchanamoorthy v. Canada (Citizenship and Immigration), 2018 FC 690 (CanLII)

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Dr. Muhammad Abrar

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