Date: 20251127

Docket: IMM-18115-24

Citation: 2025 FC 1894

Toronto, Ontario, November 27, 2025

PRESENT: Madam Justice Whyte Nowak

JUDGMENT AND REASONS

I. Overview

[1] The Applicant, Thi Huyen Trang Nguyen [Applicant], seeks judicial review of a decision dated August 23, 2024, of an officer [Officer] of Immigration, Refugees and Citizenship Canada [IRCC] refusing the Applicant’s work permit application based on a finding of inadmissibility for misrepresentation [Decision].

[2] For the reasons that follow, I am allowing this application by reason that the Officer failed to disclose sufficient details related to the concerns giving rise to a procedural fairness letter that was issued to the Applicant thereby denying her a meaningful chance to know the case she had to meet and respond to. Judicial authorities of this Court make clear that a procedural fairness letter which expresses concern that could give rise to a finding of misrepresentation attracts a high degree of procedural fairness which means that the decision maker must disclose facts related to the nature of the concern as opposed to disclosing a mere conclusion, as was the case here.

II. Legislative Framework

[3] Subsection 11(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] allows an officer to issue a Permanent Residence [PR] if they are satisfied that the PR applicant is not inadmissible and meets the relevant requirements under IRPA.

[4] Paragraphs 40(1)(a) and 40(2)(a) of IRPA detail on what grounds an applicant is inadmissible for misrepresentation and the consequences thereof:

III. Facts

A. The Applicant’s work permit application

[5] The Applicant is a citizen of Vietnam. On February 18, 2024, she applied for a work permit under the Temporary Foreign Worker Program based on a positive Labour Market Impact Assessment she received on January 31, 2024. In her application, the Applicant declared that she was employed as a cook at Buffalo Rice 179 Restaurant in Ho Chi Minh City in Vietnam [the Employer] from February 2022 to August 2023. In support of her application, she provided: (i) her resume and credential assessment; (ii) her employment contract; and (iii) a letter from her Employer dated November 21, 2023 [the Employment Letter], which purported to confirm her employment.

[6] On April 16, 2024, an officer of the IRCC’s Risk Assessment Unit [RAU officer] was asked to verify the Employment Letter. The RAU officer considered there to be obvious signs of photoshop on the Employment Letter and noted that it did not have an official seal. On April 26, 2024, the RAU officer further confirmed that there was no open-source information on the Employer under either the Vietnamese or English name. The RAU officer attempted to call the phone number of the Employer three times, but no one answered those calls.

B. The procedural fairness letter and the Applicant’s response

[7] On June 12, 2024, the Applicant was sent a procedural fairness letter [PFL] which stated:

Specifically, I have concerns that you submitted a fraudulent employment document from Buffalo Rice 179 Restaurant. Please explain why you have submitted this document in support of your application.

[8] The PFL stated that the Officer was concerned that the Applicant did not meet the requirement of subsection 16(1) of IRPA to truthfully answer all questions put to them, and cautioned that if confirmed that the Applicant engaged in misrepresentation, she would be inadmissible under paragraph 40(1)(a) of IRPA for a period of five years from the date of the inadmissibility decision pursuant to paragraph 40(2)(a) of IRPA.

[9] The Applicant provided a response to the PFL by letter dated June 12, 2024, in which she confirmed that the Employment Letter is genuine and that she still works at the restaurant six days a week. She provided her Employer’s phone number, which was the same phone number provided in the Employment Letter. The Applicant also provided a letter dated June 12, 2024, from the owner of the Employer confirming the Applicant’s employment and attaching the Employer’s bank statement with five entries demonstrating a withdrawal for the Applicant’s salary with an explanatory note. The Employer further provided twelve undated photos purporting to show the Applicant working with the Employer at the restaurant.

C. The Decision

[10] By Decision dated August 23, 2024, the Applicant’s work permit was refused based on a finding of inadmissibility under paragraph 40(1)(a) of IRPA 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 IRPA. The Global Case Management System [GCMS] notes that accompany the Decision state that the Officer found that there were clear indications that the date and the period the Applicant was employed were photoshopped on the Employment Letter. The Applicant’s response to the PFL did not alleviate the Officer’s concerns that the Employment Letter was not fraudulent, nor did the new information provided support her employment from February 2022 to November 2023 as indicated in the Employment Letter.

[11] The GCMS notes also reveal that in considering the Applicant’s response to the PFL, the Officer gave little weight to both the Employer’s bank statement and the Applicant’s bank statement which the Officer considered to “lack credibility” because of “several concerning features.” The Officer also noted that the bank statements demonstrated one salary payment over the months of May and June, and not several months over the course of the Applicant’s declared employment. The Officer gave little weight to the images of the Applicant working at the restaurant.

D. Post-Decision response of the Applicant

[12] Upon receipt of the Certified Tribunal Record, the Applicant says she learned that there were additional reasons for the refusal of her work permit that were not identified in the PFL, namely: (i) the absence of a seal on the Employment Letter; (ii) open-source information about the Employer; and (iii) the RAU officer’s unsuccessful attempt to contact the Employer. The Applicant says that had she been made aware of these concerns, she would have responded to them with the documents now attached to her supporting affidavit on this application which includes: articles discussing when Vietnamese companies do not use seals, a printout of the google translation of “Co’m trâu” translated to “Buffalo rice,” a printout of the Employer’s Google Maps page, a letter dated September 30, 2025 from the Employer stating that they do not use seals as a small, family-run restaurant and explaining why they did not answer the RAU officer’s phone calls and seven photos of the restaurant annexed to the Employer’s letter [collectively, the New Evidence]. The Applicant requests that this Court admit the New Evidence under the second exception referred to in paragraph 20 of Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 122.

IV. Issues and Standard of Review

[13] The Applicant has raised issues related to both procedural fairness and the reasonableness of the Decision as well as an issue related to the submission of the New Evidence, however, I find that the issue of procedural fairness is determinative.

[14] A review of issues of procedural fairness is conducted on a standard akin to correctness as articulated in paragraph 34 of Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 68 [Canadian Pacific]. The ultimate question to be answered is whether the Applicant knew the case to meet and had a full and fair chance to respond (Canadian Pacific at para 56).

V. Analysis

[15] The Applicant submits that she was not apprised of the nature of the concerns that led to the issuance of the PFL and that in order for her to understand the allegations being made against her, the Officer was required to disclose the details of the investigation that determined that her Employment Letter was fraudulent (citing Chahal v Canada (Citizenship and Immigration), 2022 FC 725 at paras 25 and 27 [Chahal]. The Applicant says that this would have allowed her to provide a letter from the Employer that addressed all of the Officer’s concerns and not the ones she had to guess until she received the disclosure of the GCMS notes.

[16] The Respondent contends that the PFL had sufficient information for the Applicant to know the case to be met by stating that there were concerns that the document from the Employer was fraudulent (citing Arevalo Pelaez v Canada (Citizenship and Immigration), 2025 FC 1191 at para 38 [Arevalo Pelaez]). The Respondent points out that both the Applicant and the Employer knew exactly which document the Officer was referring to and both had an opportunity to dissuade the Officer of the concern but failed to do so directly. Given that it was the fraudulent nature of the Employment Letter that was the basis for both the PFL and ultimately, the finding of misrepresentation, the Respondent submits that there was no need for the Officer to have disclosed the investigations undertaken by other officers which were directed at other issues.

[17] I find that based on the authorities provided by the parties, there are two aspects to the question of whether the Applicant was denied procedural fairness: first, whether the PFL contained the requisite level of disclosure of the nature of the Officer’s concerns; and second, whether the Applicant knows the case she had to meet in order to meaningfully respond to the Officer’s concerns.

A. The level of disclosure required

[18] The parties agree that level of procedural fairness owed to an applicant in the context of a finding of misrepresentation is higher than that owed in the context of the regular visa process due to the severe consequences that result from such a finding (Mehreen v Canada (Citizenship and Immigration), 2016 FC 533 at para 24 [Mehreen], Kaur v Canada (Citizenship and Immigration), 2020 FC 809 at para 39).

[19] The question is: what does a high standard of procedural fairness mean in the context of this case? Did the Officer meet this standard by stating in the PFL that the Officer was concerned that the Applicant had submitted a fraudulent document from the Employer, or was the Officer required to go further by stating at a minimum, the Officer’s specific concern that the document had been photoshopped, or even further as the Applicant suggests, by disclosing what investigations had been undertaken regarding the Employer?

[20] I agree with the Respondent that the authorities only require a decision maker to provide the “gist” of the concern that prompts a procedural fairness letter (Arevalo Pelaez at paras 38 and 39 citing El Rifai v Canada (Citizenship and Immigration), 2024 FC 524 at para 4, Krishnamoorthy v Canada (Citizenship and Immigration), 2011 FC 1342 at para 36). This however begs the question what the gist of a concern amounts to? The answer is that disclosure must be of the facts that led to the concern and not just the conclusion (Chahal at para 25, Sapru v Canada (Citizenship and Immigration), 2011 FCA 35 at para 31, Sidhu v Canada (Citizenship and Immigration), 2020 FC 1182 at para 13). Notably, this requirement is mirrored in the instruction provided in the Immigration, Refugees and Citizenship Canada, Procedural fairness, (Guideline), (last modified: 29 August 2023) [IRCC Guidelines] which provides that an applicant ought to be advised of “significant facts” that are likely to affect the outcome of the application.

[21] In this case, this means that the Officer was required to disclose the significant facts related to the concern raised in the PFL and not just the conclusion that the Employment Letter appeared to be fraudulent. The facts were those ultimately disclosed in the Decision:

“[e]mployment letter provided clearly shows alteration (photoshop) both for date of document and period she has worked for the said employer.”

[22] Contrary to the Applicant’s submissions, the Officer was not required to disclose extrinsic evidence related to the investigations carried out with respect to the Employer because they were not relied on by the Officer in coming to the preliminary conclusion about misrepresentation (Mehreen at para 27, Chalal at para 22, Maghraoui v Canada (Citizenship and Immigration), 2013 FC 883 at para 22). Again, this is consistent with the IRCC Guidelines, which state that if a decision maker relies on extrinsic evidence, they must advise the applicant of this and give the applicant an opportunity to respond to such evidence.

[23] The Applicant’s reliance on the case of Chalal is therefore misplaced: Chalal involved concerns that arose from background investigations and were relied on in issuing the procedural fairness letter (Chahal at para 27). Here, the concern leading to the issuance of the PFL arose from the face of the document and not the background investigations, and while the IRCC investigations gave rise to other concerns, these new concerns did not form the basis of the preliminary finding of misrepresentation and therefore, were not required to be disclosed.

B. The ability to meaningfully respond

[24] A determination of whether fairness required the disclosure of any part of the material on which a decision maker relied must also include a consideration of the extent to which the individual’s knowledge of the nature of the concerns effectively enabled them to respond (Chiau v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 297 (CA) at para 47).

[25] In this case, the question is whether the Applicant demonstrated that she knew the case to meet and had the ability to meaningfully respond.

[26] The Respondent submits that the Applicant was aware that the Officer’s concern was with respect to the Employment Letter and the Applicant knew she needed to disabuse the Officer of the concern that the document was fraudulent but never did. The Respondent notes that even the Employer’s follow-up letter forming part of the Applicant’s proposed New Evidence, still does not address the issue.

[27] In my view, the level of disclosure informs the ability to meaningfully respond. Here, the Applicant’s response that the Employment Letter is “genuine” responded directly to the allegation that the Employment Letter was fraudulent. If the Officer wanted the Applicant to explain the alterations considered to be photoshopped - which was the Officer’s real concern - the Officer needed to advise her of this in order to provide her with a meaningful opportunity to respond (Shen v Canada (Citizenship and Immigration), 2024 FC 1997 at para 10).

[28] My finding that the Applicant’s right to procedural fairness was breached is determinative of this application and it is therefore not necessary for me to address the Applicant’s arguments regarding the reasonableness of the Decision or to consider the admission of the New Evidence.

VI. Conclusion

[29] The Applicant was denied procedural fairness due to the failure on the part of the Officer to provide the Applicant with the facts underlying the Officer’s concern and because the Applicant was not provided with a meaningful chance to respond to the Officer’s concerns (Patel v Canada (Citizenship and Immigration), 2023 FC 1394 at para 24). This application for judicial review is therefore allowed.

[30] The parties have not raised any question of general importance, and none arises.

JUDGMENT in IMM-18115-24

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is allowed.

2. The decision dated August 23, 2024, is set aside and remitted back to a different decision maker; and

3. There is no question for certification.

"Allyson Whyte Nowak"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: