The Federal Court reviewed the refusal of a work permit
application based on misrepresentation under section 40(1)(a) of IRPA.
The applicant had initially been refused after the visa
office overlooked her response to a Procedural Fairness Letter. When the
application was reopened, the officer again found misrepresentation, but this
time discounted the very documents the applicant had submitted in response to
the original PFL without giving her an opportunity to address the new
credibility concerns. The Court found this procedurally unfair.
Key Principle
An officer is not required to provide an applicant with a
continuing “running score” of deficiencies in an application.
However, where an applicant responds to a PFL with evidence
intended to resolve the officer’s concerns, and the officer then develops new
concerns about the credibility, authenticity, or reliability of that evidence,
procedural fairness may require that those concerns be put to the applicant
before an adverse decision is made.
This distinction is particularly important in
misrepresentation cases, where the consequences include a significant period of
inadmissibility.
Background
The applicant, a Russian citizen, applied for a work permit
as a cook based on a Saskatchewan provincial nomination.
She claimed that she had previously worked as a cook in
Russia from July 2007 to August 2008. The visa officer questioned the
genuineness of this employment because it had not appeared in her previous
Canadian immigration applications.
A PFL requested her Russian work book and pension records.
The applicant responded with pages from her work book confirming the relevant
employment, a pension statement, and employer certificates.
Her initial response was overlooked, resulting in a
misrepresentation refusal. IRCC later reopened the application after
discovering that oversight.
Court Findings
On reconsideration, the officer gave the applicant’s
supporting documents little weight.
The officer criticized the work book because only its first
three pages had been submitted and found the pension records insufficient
because they did not establish the precise nature of the applicant’s
employment.
The applicant argued that these concerns were never put to
her. The pages she submitted contained the information specifically requested
in the PFL, including her employer, position, and dates of employment.
She had also submitted two employer certificates confirming
her work as a cook. Both were on company letterhead, signed by the employer’s
general director, contained contact information, and bore the same company
stamp appearing in the work book.
The Court held that the officer either failed to consider
this evidence or rejected it because of credibility concerns.
In either case, fairness required that concerns about the
credibility or genuineness of the documents be raised with the applicant so
that she could respond.
The Court emphasized the distinction between insufficient
evidence and credibility concerns. An officer does not normally need
to provide an applicant with another opportunity merely because the evidence is
inadequate. But where the officer questions whether documents or explanations
are genuine or believable, procedural fairness requires a meaningful
opportunity to address those concerns.
Outcome
The Federal Court allowed the application for judicial
review, finding that the applicant had not been given a fair opportunity to
respond to the credibility concerns arising from the evidence she submitted.
Case
Citation:
Zubova v. Canada (Citizenship and Immigration), 2019 FC 444 CanLII
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
