Shen v. Canada (Citizenship and Immigration)

Shen v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2024-12-10
Neutral citation
2024 FC 1997
File numbers
IMM-6511-23
Decision Content
Date: 20241210
Docket: IMM-6511-23
Citation: 2024 FC 1997
Toronto, Ontario, December 10, 2024
PRESENT: The Honourable Justice Battista
BETWEEN:
MEILING SHEN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
(Delivered orally from the bench on December 9, 2024. Edited for grammar and case citations.)
[1] The Applicant challenges the refusal of her application for a work permit after a visa officer found her inadmissible for misrepresentation pursuant to paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicant states that the refusal process was procedurally unfair and that the decision was unreasonable.
[2] The application is granted on the basis that procedural fairness was breached.
[3] The visa office contacted the Applicant’s former employer who allegedly denied preparing or signing her employment verification letter. No description of this verification effort exists in the Global Case Management System notes contained in the Certified Tribunal Record.
[4] The Applicant was sent a procedural fairness letter describing the visa officer’s concern that the employment letter was fraudulent and that her employment history had been fabricated. No information about the source of the suspicion was provided to the Applicant.
[5] The Applicant responded by providing details about the end of her employment and offered the contact details of an alternative reference for her employment.
[6] The visa office refused her application for misrepresentation, affording “a lot of importance” to the employment verification efforts.
[7] The question of procedural fairness asks whether the individual knew the case to meet and had the opportunity to respond to it (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 56). The Supreme Court has stated that the stringency of procedural fairness protections rises with the degree of impact of a decision on an individual (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 25).
[8] Stringent procedural protections are required in inadmissibility findings based on misrepresentation, given that the consequences of the decision include inadmissibility for five years and the inability to file a permanent residence application during that period.
[9] I agree with counsel for the Applicant that the ability to meaningfully respond to a concern encompasses not simply being advised of the nature of the concern, but, especially where extrinsic evidence is relied upon, being provided details of the extrinsic evidence (Chawla v Canada (Citizenship and Immigration), 2014 FC 434 [Chawla] at para 14). Like the applicant in Chawla, the Applicant had no idea why an investigation was conducted, how the investigation was conducted, or “what information gathered during the investigation led to the conclusion that [the Applicant] had misrepresented [her] employment” (Chawla at para 16). Unlike the applicant in Chawla, moreover, the Applicant here did not even know that an investigation was conducted.
[10] The Applicant could not meaningfully respond to the visa officer’s concern because she had no idea of the origin of the concern. This resulted in a breach of procedural fairness.
[11] In her response to the procedural fairness letter, the Applicant offered the contact details of a person who could verify her employment. The officer’s failure to pursue that additional evidence was also a breach of fairness (Zhang v Canada (Citizenship and Immigration), 2022 FC 197 at para 24).
[12] Based on the determination that the process leading to the decision was procedurally deficient, it is not necessary to deal with the Applicant’s arguments that the decision was unreasonable.
JUDGMENT in IMM-6511-23
THIS COURT’S JUDGMENT is that:
The application for judicial review is granted. The decision of the visa officer is quashed, and the matter is returned for re-determination by a different officer.
There is no question for certification.
“Michael Battista”
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
IMM-6511-23
STYLE OF CAUSE:
MEILING SHEN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING:
TORONTO, Ontario
DATE OF HEARING:
DECEMBER 9, 2024
JUDGMENT AND REASONS:
BATTISTA J.
DATED:
December 10, 2024
APPEARANCES:
David Paul Kingwell Sam Zimmerman
For The Applicant
Sarah Merredew
For The Respondent
SOLICITORS OF RECORD:
Kingwell Immigration Law Barristers and Solicitors Toronto, Ontario
For The Applicant
Attorney General of Canada Toronto, Ontario
For The Respondent