Docket: IMM-19875-24
Citation: 2025 FC 1767
Toronto, Ontario, November 3, 2025
PRESENT: Madam Justice Whyte Nowak
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BETWEEN: |
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HARMANPREET SINGH |
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Applicant |
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and |
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION |
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Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Harmanpreet Singh [the Applicant] seeks judicial review of the decision [Decision] made by an immigration officer [the Officer] of Immigration, Refugees and Citizenship Canada on October 8, 2024, refusing the Applicant’s application for permanent residence [Application] under the Canadian Experience Class [CEC].
[2] The Officer found that there were a number of inconsistencies in the documentation submitted by the Applicant to support his Canadian work experience and issued the Applicant a procedural fairness letter [PFL] setting out the Officer’s concerns. As the Applicant’s response to the PFL did not answer those concerns and raised new ones, the Officer found that the Applicant’s employment was not genuine and without it, the Applicant did not have the requisite work experience.
[3] For the reasons that follow, I find that the arguments raised by the Applicant do not detract from the reasonableness or fairness of the Decision. Accordingly, this application is dismissed.
II. Facts
[4] The following facts are taken from the Global Case Management System notes that accompanied the Decision.
A. The Applicant’s PNP and Permanent Residence Applications
[5] The Applicant is a national of India and a temporary resident in Canada. The Applicant created an express entry profile based on his work experience at Bhogal Metal Works Inc [the Employer] as a full-time Tool and Die Maker. He submitted a Provincial Nominee Program [PNP] application and on November 3, 2023, he accepted a nomination from the province of Ontario.
[6] On December 6, 2023, the Applicant was invited to apply for permanent residence under the PNP having been awarded 53 points for two years of Canadian work experience.
[7] The Applicant submitted his Application for permanent residence as a member of the CEC on February 3, 2024. The Applicant declared that he was employed with the Employer from January 5, 2022 until February 3, 2024. His Application included: (i) an undated letter of employment [LOE]; (ii) an undated letter of offer [LOO]; (iii) a 2022 T4 slip; (iv) a 2022 Notice of Assessment; and (v) paystubs from January 1, 2022 to January 21, 2022 and December 18, 2023 to January 7, 2024 [collectively, the Original Documents].
B. The Officer’s request for additional pay statements
[8] On July 17, 2024, the Officer requested that the Applicant provide paystubs from January 2022 to February 2024 [Request] to substantiate his two years of work experience.
[9] The Applicant responded to the Request clarifying that the work experience included in his Application, represented one year of work as required. The Applicant submitted paystubs for 19 additional pay periods starting on December 24, 2022 and ending on April 28, 2023 and one pay period from August 19, 2023 to August 25, 2023 [collectively, the Additional Documents].
C. The Procedural Fairness Letter
[10] On August 14, 2024, the Officer sent a PFL providing the Applicant with an opportunity to address various inconsistencies in the Applicant’s Application:
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(i)Although the Applicant stated that he had one year of Canadian work experience, his paystubs only represent eight months of work in 2023;
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(ii)The paystub dated December 6, 2023, is for the pay period December 25, 2023 to December 31, 2023 and indicates that the Applicant worked for 40 hours in a week that included two statutory holidays on December 25 and 26 with no overtime pay;
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(iii)The paystubs indicate that the Applicant was paid weekly which is contrary to the LOO which stated that he would be paid bi-weekly; and
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(iv)Paystubs in January 2022 show the Applicant was paid at an hourly wage rate of $17.00 which contradicts the hourly wage rate of $22.00 provided in the LOO.
[11] Notably, the Officer cited subsection 16(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] (the obligation of an applicant to answer truthfully) and warned the Applicant that if it was found that he had engaged in misrepresentation in submitting his Application, he may be found to be inadmissible under paragraph 40(2)(a) of the Act.
[12] The Applicant was allowed to provide any further information and documentation to explain these inconsistencies.
D. The Applicant’s Response to the PFL
[13] In response to the PFL, the Applicant submitted a personal affidavit and an affidavit from the owner of the Employer. The Applicant’s affidavit stated that the paystub inconsistencies were the result of an “administrative error”
on the part of his Employer and that he submitted the paystubs under the assumption that the Original Documents and Additional Documents were correct.
[14] The Employer’s affidavit confirmed the Applicant’s employment, the Applicant’s raise from an hourly wage of $17.00 to $22.00 and his explanation that the inconsistencies in the paystubs were caused by an “administrative error.”
Annexed to the Employer’s affidavit was a LOE dated September 20, 2024, confirming the Applicant’s employment experience, an LOO dated January 3, 2022 and the Applicant’s response to the Request.
E. The Decision
[15] On October 8, 2024, the Officer refused the Applicant’s Application stating, “I am not satisfied that you meet the skilled work experience requirement(s) because I am not satisfied on the balance of probabilities that the work you declared is genuine.”
Excluding this work experience, the Officer determined that the Applicant’s work experience dropped below that required under paragraph 87.1(2)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227 with the result that the Applicant no longer met the requirements of paragraphs 11.2(1)(a) and (b) of the Act.
F. The Reconsideration Request and Reconsideration Decision
[16] On November 25, 2024, the Applicant’s consultant requested, “another visa officer to manually reassess the permanent resident application.”
This was followed by a formal request for reconsideration on December 5, 2024 [the Reconsideration Request].
[17] The Applicant submitted two affidavits from colleagues and a record of employment [ROE] issued by Service Canada to show that the Applicant’s employment was genuine. The Reconsideration Request repeated that the inconsistencies in the Applicant’s paystubs were due to an administrative error on the Employer’s part and that the Applicant made his Application in good faith. The Applicant submitted that the administrative errors should not automatically lead to a refusal in such circumstances, and the ROE should be given significant weight in evaluating the merits of his Application. The Applicant also took the position that the Officer was required to engage in a dialogue with PNP officials regarding their concerns with the Application and to make follow-up inquiries or interview the Applicant before refusing his Application.
[18] On December 11, 2024, the Officer refused to re-open the Application for reconsideration on the basis that there were insufficient reasons to do so [the Reconsideration Decision]. The Applicant did not seek judicial review of the Reconsideration Decision.
III. Preliminary Issue
[19] The Respondent objects to the fact that the Application Record includes the ROE and the affidavits from the Applicant’s colleagues which post-date the Decision and were not before the Officer in rendering the Decision.
[20] It is well-established that judicial review of an administrative tribunal should be based on the record that was before the decision-maker (Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22 at paras 19-20). While there are exceptions to this rule, the Applicant has not argued, and I do not find that any of the recognized exceptions apply with the result that this evidence shall be struck from the Application Record.
IV. Issues and Standard of Review
[21] The Applicant raised the following issues in his Memorandum of Fact and Law:
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Was the Officer’s Decision unreasonable by reason that the Officer ignored evidence?
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Was the Applicant denied procedural fairness by not making inquiries of PNP officials or providing him an opportunity for an interview?
[22] At the hearing of the application, counsel for the Applicant made submissions directed at an entirely different argument: that the Decision is unreasonable and procedurally unfair by reason that the Officer failed to advise the Applicant of his specific concern, which was that the Applicant’s employment with the Employer was not genuine. The Respondent understandably objected to the Applicant’s new argument and new authorities. I rejected the new authorities at the hearing and reserved my decision on whether to allow the new argument. I have decided not to. The Applicant’s attempt to introduce a new argument for the first time in his oral submissions clearly prejudices the Respondent and ignores that leave was granted based on the arguments presented by the parties in their memoranda. The case law is clear and long-standing that only the arguments contained in a party’s memorandum can be advanced in oral argument (Tehranimotamed v Canada (Citizenship and Immigration), 2024 FC 548 at para 12 citing Bridgen v Canada (Correctional Service), 2014 FCA 237).
[23] With respect to the issues raised in the Applicant’s Memorandum, the applicable standard of review (including whether the decision maker ignored relevant evidence), is that of reasonableness as set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. A reasonable decision bears the hallmarks of justification, transparency and intelligibility with the burden resting on the challenging party to show that the decision is unreasonable (Vavilov at paras 99-100).
[24] An allegation of procedural fairness is determined on a standard of correctness (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 34, 54-56 [Canadian Pacific]) which is a non-deferential standard of review (NMS v Canada (Citizenship and Immigration), 2023 FC 391 at para 50). The ultimate question is whether the party knew the case they had to meet and had an opportunity to respond before an impartial decision maker (Canadian Pacific at para 41).
V. Analysis
A. The Decision is not unreasonable
[25] The Applicant submits that the Officer failed to account for the Affidavits and the Officer’s conclusion that the Applicant’s work experience was not genuine was an unreasonable finding of fact that runs contrary to the “overwhelming weight of credible evidence.”
[26] The Applicant cites authority for the proposition that a decision is unreasonable where it fails to deal with any credible document that goes to the “crux of the matter”
(Gill v Canada (Citizenship and Immigration), 2020 FC 934 at para 40). The Applicant submits that the Officer failed to take into consideration the Affidavits and correct pay stubs and failed to explain why the sworn Affidavits were not reliable.
[27] This argument misconstrues the basis upon which the Officer rejected the Applicant’s work experience with the Employer. The Officer accepted the Affidavits, but found they provided an inadequate explanation stating:
At no time is an explanation provided as to how an administrative error occurred that resulted in the PA being paid for periods he states he did not work, receiving paystubs for periods he states he did not work, and receiving a letter of experience and a letter of offer that were both inaccurate. I also find it disingenuous that a new letter of offer has been submitted but dated 2022/01/03.
Given the conflicting information supplied and the inadequate explanations offered, I am not convinced on the Balance of Probabilities, that the employment as stated is genuine. I will not be including the employment from Bhogul [sic] Metals in the calculation of the PA’s work experience.
[28] Contrary to the Applicant’s submissions that the Officer erred in failing to explain why the Officer still had concerns, the Officer did just that. The Applicant simply disagrees with the Officer’s assessment of the evidence and the adequacy of the Applicant’s explanation, which this Court is not tasked with reassessing (Vavilov at para 125).
B. No breach of the duty of procedural fairness
[29] The Applicant relies on case law that pre-dates Vavilov for the proposition that as a matter of procedural fairness, a decision maker must consider and address all relevant evidence and that should a sworn statement raise any doubts in the mind of the decision maker, those concerns should be dealt with by way of follow-up inquiries (citing Guo v Canada (Minister of Citizenship and Immigration), 2006 FC 626 at paras 5, 7-8, 14 and Haghighi v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 854 (FCA) at para 31).
[30] The Applicant argues that he had a legitimate expectation that the Officer would consult with PNP officials in Ontario before refusing his Application, given that the PNP was satisfied as to his “fit.”
The Applicant also suggests that, without contacting PNP officials, the Officer had no way of knowing whether the PNP officials had contacted the Employer to confirm the details of his employment.
[31] This argument has no merit: the invitation to apply that was issued by PNP officials in Ontario was premised on the express entry profile created by the Applicant himself. As the Respondent notes, at that time, applicants are advised that if an invitation to apply is issued, an applicant will need to show proof of the information provided in the profile. The Applicant was ultimately unable to do so. Moreover, had the PNP officials contacted the Employer and confirmed his employment, the Employer’s Affidavit could have stated this.
[32] Ultimately, the onus rested on the Applicant to make out his Application and it cannot be said that he was unaware of the Officer’s concerns regarding the inconsistent documentation he had submitted to support his claimed work experience, nor was he denied an opportunity to allay those concerns (Canadian Pacific at para 41).
VI. Conclusion
[33] The Applicant has not met his burden of showing that the Decision is unreasonable or procedurally unfair. The application is therefore dismissed.
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