Date: 20241205

Dockets: IMM-15315-23

IMM-406-24

Citation: 2024 FC 1970

Toronto, Ontario, December 5, 2024

PRESENT: The Honourable Madam Justice Aylen

JUDGMENT AND REASONS

[1] These are two applications for judicial review that were heard together. On the first application, IMM-15315-23, the Applicant seeks judicial review of the decision of an immigration officer [Immigration Officer] dated January 30, 2023, refusing the Applicant’s application for a study permit and finding the Applicant inadmissible pursuant to section 40 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA] for having misrepresented material facts — namely, for including a fraudulent letter of acceptance [LOA] in her application. On the second application, IMM-406-24, the Applicant seeks judicial review of the decision of an immigration officer [Officer] dated November 10, 2023, denying her application for permanent residence on the basis that she had been found inadmissible for misrepresentation as related to her study permit application.

[2] The Applicant asserts that she was denied procedural fairness in relation to both decisions. However, I am not satisfied that the Applicant has established any such denial and accordingly, her applications for judicial review shall be dismissed.

I. Background

[3] In October 2021, the Applicant submitted an application for a study permit. Included in her application was a LOA from Mohawk College, dated August 18, 2021, stating that she had been admitted to the Global Business Management program.

[4] In August 2022, the Applicant submitted an application for permanent residence as a member of the Provincial Nominee Class.

[5] On September 28, 2022, Immigration, Refugees and Citizenship Canada [IRCC] sent the Applicant a procedural fairness letter [PFL] advising of concerns that she had misrepresented information on her study permit application. The PFL provided, in part, as follows:

I have reasonable grounds to believe that you have not fulfilled the requirement put upon you by section 16(1) of the Immigration and Refugee Protection Act, which states:

16(1) a person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.

Specifically, you have submitted a fraudulent letter of acceptance (Mohawk College of Applied Arts and Technology) in support of your application. This is a material fact that could have induced an error in the administration of the Act. By virtue of submitting fraudulent documents, it also further leads IRCC to question the authenticity and credibility of the other documents submitted in support of your application, and your purpose for travelling to Canada.

[CTR, pg 35]

[Emphasis in original.]

[6] The PFL further warned that if the Applicant was found to have misrepresented, she may be inadmissible under section 40(1)(a) of the IRPA and that such a finding may render her inadmissible to Canada for five years. The Applicant had 15 days from the date of the PFL to make any responding representations. The Applicant did not respond to the PFL.

[7] On January 30, 2023, the Immigration Officer refused the Applicant’s study permit application and found her inadmissible to Canada pursuant to paragraph 40(1) of the IRPA for misrepresentation. The GCMS notes dated October 15, 2022, and January 30, 2023, which form part of the reasons for decision, contain the following:

PFL was sent to PA on 2022/09/28 affording them an opportunity to respond to concerns of fraudulent LOA from Mohawk College of Applied Arts and Technology. PA did not respond to PFL. PA has failed to provide any information which overcomes the fraud concerns. Providing a counterfeit LOA from Mohawk College of Applied Arts and Technology could induce an error in the administration of the Act. File referred to delegated authority for finalization.

I find the applicant inadmissible for misrepresentation pursuant to A40(l). Application refused.

[8] With the assistance of counsel, the Applicant took steps throughout 2023 to move the processing of her permanent residence application forward.

[9] On November 10, 2023, an Officer denied her application for permanent residence on the basis that she had been found inadmissible to Canada as a result of the fraudulent documents she had submitted with her study permit application and that she would continue to be inadmissible for five years as of January 30, 2023. The GCMS notes, dated November 11, 2023, which form part of the reasons for decision, contain the following:

***OFFICER REVIEW*** Eligibility - EP00513750 PA appears to have the ability to become economically established in the nominated province. I am satisfied that PA meets eligibility. Province of Nomination: Saskatchewan PNP Certificate: 3065047 PNP Stream: International Skilled Worker Occupations in Demand Nominating Employer: N/A – Not Required Nominating Occupation: NOC 0111/A – Financial Managers PA submitted S304462720 in 2021/10/09 and in support of the application, they submitted a Letter of Acceptance from Mohawk College of Applied Arts and Technology. After a verification review, it was confirmed that PA provided a fraudulent letter of acceptance as part of the application thereby misrepresenting a material fact, and that this act of misrepresentation could have induced an error in the administration of the Act had it gone undetected. As a result, PA was refused on 2023/01/30 and found inadmissible under section A40(1)(a). PA is inadmissible to CAD for 5YRS as of January 30, 2023 under section A40 of the Immigration and Refugee Protection Act. Section 40 (1) of the Immigration and Refugee Protection Act states : 40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; 40 (2) The following provisions govern subsection (1): (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; As PA is inadmissible under section A40 of the Immigration and Refugee Protection Act, PA does not meet the requirements for immigration to Canada. Application is REFUSED under A40(2)(a) & A11(1) Refusal letter sent to applicant. Request for refund of RPRF initiated

II. Issues and Standard of Review

[10] The sole issue for determination in relation to each application is whether the Applicant was denied procedural fairness.

[11] Issues of procedural fairness in administrative contexts have been considered reviewable on a correctness standard or subject to a “reviewing exercise [...] ‘best reflected in the correctness standard’ even though, strictly speaking, no standard of review is being applied” [see Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54 [Canadian Pacific Railway Company]. The duty of procedural fairness is “eminently variable,” inherently flexible and context-specific. It must be determined with reference to all the circumstances, including the Baker factors [see Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 77]. A court assessing a procedural fairness question is required to ask whether the procedure was fair, having regard to all of the circumstances [see Canadian Pacific Railway Company, supra at para 54].

[12] While the parties made submissions on the issue of whether the Applicant should be granted an extension of time to commence the application for judicial review in IMM-15315-23, as I indicated at the hearing, the request for an extension of time was granted at the leave stage and thus I need not make a determination on this issue.

III. Analysis

A. The Applicant was not denied procedural fairness in relation to her study permit application

[13] The Applicant asserts that she was denied procedural fairness due to technical issues with IRCC’s portal, which resulted in her being unaware of: (a) the PFL; (b) the denial of her study permit application; and (c) the misrepresentation finding, all until after she learned her permanent residence application was refused. The Applicant maintains that had she been aware of the PFL on her portal page, she would have provided an explanation regarding the withdrawal of her admission from Mohawk College to assuage any of the Immigration Officer’s concerns and possibly avoid the misrepresentation finding.

[14] In that regard, the Applicant’s evidence is that on April 7, 2022, she withdrew her admission to Mohawk College as a result of her employer withdrawing their financial support of her studies due to the delay in processing her study permit application. She provided evidence of a confirmation email from Mohawk College dated April 28, 2022, confirming her request for a refund of her tuition and withdrawal of her admission. She states that she believed Mohawk College had notified IRCC of her withdrawal of admission and that her study permit application would be withdrawn as a direct result, without any further steps needing to be taken by the Applicant.

[15] With respect to the technical issues regarding IRCC’s portal, the Applicant acknowledges receiving an email from IRCC regarding her study permit application on September 28, 2022 (the date the PFL was sent) alerting her that “we need something from you to continue processing your application” and advising her to sign in to her account on the IRCC portal. She also acknowledges receiving a further email from IRCC regarding her study permit application on January 30, 2023 (the date the decision was sent) alerting her that “a message about your application is waiting for you” and advising her to sign in to her account on the IRCC portal.

[16] The Applicant asserts that due to the technical issue with IRCC’s portal, she was not able to see the PFL and therefore did not receive a meaningful opportunity to respond to the Officer’s concerns regarding her potential misrepresentation. She asserts that this lack of meaningful opportunity caused a breach in her right to procedural fairness.

[17] I reject this assertion. The Immigration Officer met their procedural fairness obligation to the Applicant by providing the PFL, setting out in the PFL sufficient information for the Applicant to understand the Immigration Officer’s concern and providing the Applicant with a meaningful opportunity to respond. With no response having been provided to the PFL, it was open to the Officer to proceed and make a determination on the application [see Malhi v Canada, 2023 FC 392 at para 18; Bayramov v Canada (Citizenship and Immigration), 2019 FC 256 at para 18].

[18] The Applicant admits that she was aware of the need to contact IRCC about her study permit application as a result of the emails she received on September 28, 2023, and January 30, 2023, but maintains that the technical issue prevented her from accessing these communications from IRCC. However, there is no evidence before the Court of any steps she took to rectify the technical issue she asserts to have been experiencing (the particulars of which she did not provide), despite the fact that IRCC’s website has a section concerning the issue of not being able to access the IRCC portal. For example, the Applicant did not submit a web form for technical support to IRCC, notwithstanding that she was well aware of how to submit a web form as she submitted one in October 2022 in relation to her permanent residence application.

[19] When pressed at the hearing as to what exact steps she took to address her inability to access the IRCC portal, the Applicant noted two, which she asserts were sufficient in all of the circumstances. First, she states that she contacted Mohawk College to withdraw her admission and thereafter relied on the representations made by Mohawk College that they would alert IRCC, such that she believed she no longer needed to take any steps in relation to her study permit application. I reject this explanation. The email response from Mohawk College merely stated: “Please note that current offer letters are invalid and your status will be reported to IRCC.” A reasonable reading of this email would not lead the Applicant to conclude that Mohawk College would formally withdraw her study permit application on her behalf and that no further steps would need to be taken by her.

[20] Second, the Applicant points to her retention of legal counsel as constituting a reasonable step taken to address her inability to access the IRCC portal. However, legal counsel was not retained until many months after the transmission of the PFL and even then, the retainer appears, on the evidence before me, to have been intended to advance her permanent residence application and not to address her study permit application.

[21] The Applicant finds herself in her present circumstances due to her own inaction, rather than any inaction on the part of the Immigration Officer. The Applicant’s own failure to take any steps to gain access to the PFL cannot be the basis for a finding of a denial of procedural fairness [see Mansooryan v Canada (Citizenship and Immigration), 2024 FC 1718 at para 31].

[22] Having found that there was no breach of the Applicant’s procedural fairness rights, the application for judicial review in IMM-15315-23 shall be dismissed.

B. The Applicant was not denied procedural fairness in relation to her permanent residence application

[23] The Applicant submits that the Officer breached her right to procedural fairness by refusing her permanent residence application without providing her an opportunity to respond to the concern regarding her inadmissibility or to fully participate in the process. This failure by the Officer precluded her from advancing humanitarian and compassionate [H&C] considerations under section 25 of the IRPA to potentially overcome her inadmissibility. She asserts that the Officer was obligated to send her a procedural fairness letter to address IRCC’s concerns regarding the misrepresentation ban incurred as a result of her study permit application.

[24] There is no merit to the Applicant’s assertion that, in the circumstances, the duty of procedural fairness obligated the Officer to send her a procedural fairness letter. It must be recalled that the Applicant had previously been sent a copy of the decision refusing her study permit and finding her to be inadmissible to Canada. As far as the Officer was concerned, they could only assume that she had received the decision and, if she had any H&C submissions to make, that she would have included them in her permanent residence application.

[25] The Applicant has cited no authority in support of her assertion that an officer is obligated to provide a procedural fairness letter to an applicant who has previously been found inadmissible on the basis of misrepresentation, so as to afford them an opportunity to make H&C submissions. This is not surprising given that paragraph 40(2)(a) of the IRPA does not provide discretion to officers to simply disregard previous inadmissibility findings. Rather, the Officer was statutorily mandated to refuse the Applicant’s permanent residence application in light of the inadmissibility finding. The fairness owed to the Applicant in the context of her permanent residence application did not require the Officer to notify her of a concern that arises directly from the application of the relevant legislation or to provide her with an opportunity to make submissions regarding the concern in question [see Masam v Canada (Citizenship and Immigration), 2018 FC 751 at para 11].

[26] As the Applicant has failed to demonstrate that she was denied procedural fairness, this application for judicial review shall also be dismissed.

JUDGMENT in IMM-15315-23 and IMM-406-24

THIS COURT’S JUDGMENT is that:

1. The applications for judicial review are dismissed.

2. There are no questions for certification.

“Mandy Aylen”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: