Vora v. Canada (Citizenship and Immigration), 2018 FC 1068 : In-Canada Spousal PR Refusal – Document Requests and Decision Timing Were Procedurally Unfair

Introduction

Sheab Salimbhai Vora sought judicial review of the refusal of his permanent residence application under the Spouse or Common-Law Partner in Canada class. Although the immigration officer had accepted that Vora’s marriage to a Canadian citizen was genuine, the application was later refused because passport and medical documentation had not been provided. The Federal Court found two breaches of procedural fairness concerning the handling of Vora’s representative and the decision to refuse after an arbitrary 45-day period without further notice.

Key Principle

Where an immigration officer receives correspondence from a representative but declines to recognize that representative because the required Use of a Representative form has not been submitted, procedural fairness may require notice to the applicant. Further, when an officer allows additional time to obtain outstanding documents and later intends to refuse because sufficient time has supposedly elapsed, the applicant must receive fair notice where the deadline has no demonstrated connection to when the documents could reasonably be obtained.

Background

Vora, an Indian citizen, entered Canada as a visitor in November 2013 and married a Canadian citizen in October 2015. He applied for permanent residence in July 2016.

In April 2017, the officer determined that the marriage was genuine. The officer then requested documentation required to assess admissibility, including medical reports, a valid passport and a marriage certificate. Further requests followed in July and September 2017.

In October 2017, a paralegal advised IRCC that she had been retained and provided a marriage certificate, bank statements, telephone bills and a receipt showing that Vora had applied to the Indian consulate for a passport. She explained that Vora could not complete his medical examination until the renewed passport arrived. Because no IMM 5476 had been submitted, the officer declined to add the paralegal as representative and placed the application on hold for 45 days.

Court Findings

• Failure to Notify Applicant About Representative Was Unfair

The officer received substantive correspondence from the paralegal but refused to add her to the file because the IMM 5476 Use of a Representative form was missing. The Court agreed that failing to notify Vora that his representative had not been recognized constituted a breach of procedural fairness.

• Forty-Five-Day Period Was Arbitrary

On January 25, 2018, the officer refused the application because no further passport or medical documentation had been received. The Court found nothing in the record explaining why 45 days had been selected or connecting that period to a reasonable expectation that the requested documents would be available. At the hearing, the respondent accepted that documents requested from India could be notoriously slow to arrive.

• Applicant Should Have Received Notice Before Refusal

The Court accepted Vora’s argument that he should have been notified before the officer made a final decision based on an assumption that sufficient time had been provided. Combined with the failure to advise him that the paralegal had not been added as representative, this amounted to two breaches of procedural fairness requiring the refusal to be set aside.

Outcome

The Federal Court granted judicial review and remitted the application to a different decision-maker. The genuine-marriage finding was preserved, and redetermination was ordered on an evidentiary record current as of the new decision date. No question was certified.

Case Citation:

Vora v. Canada (Citizenship and Immigration), 2018 FC 1068 (CanLII)