Docket: IMM-7420-24
Citation: 2025 FC 1965
Ottawa, Ontario, December 15, 2025
PRESENT: Mr. Justice Norris
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BETWEEN: |
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RONG LE |
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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] The applicant is a 33-year-old citizen of China. In 2018, he applied from within Canada for a permanent resident visa as a member of the provincial nominee class. After the applicant was determined to be eligible for a visa, Immigration, Refugees and Citizenship Canada (IRCC) asked him to submit his Chinese passport. The applicant was out of town at the time and did not have his passport with him so he asked a friend, who was staying at his Ottawa home, to retrieve the passport and send it to IRCC. As it happened, there was a second Chinese passport in the drawer where the applicant kept his passport. This passport had the applicant’s photograph on it but was in the name of Qianchen Ma. Unfortunately for the applicant, that was the passport his friend sent to IRCC.
[2] After receiving the Ma passport, IRCC undertook further investigations, including an interview with the applicant and the issuance of a procedural fairness letter, to which the applicant responded. Eventually, on April 15, 2024, an officer with IRCC refused the permanent resident visa application on the basis that the applicant is inadmissible due to misrepresentation under paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). Specifically, the officer found that the applicant failed to disclose that he has an alias – Qianchen Ma – when he applied for a permanent resident visa. Despite the applicant having also requested a temporary resident permit, the decision did not address this request on its merits.
[3] The applicant has applied for judicial review of this decision under subsection 72(1) of the IRPA. He submits that the misrepresentation finding was made in breach of the requirements of procedural fairness and that it is unreasonable. He also submits that the officer erred in failing to address his request for a temporary resident permit.
[4] The respondent concedes that the officer erred in failing to address the request for a temporary resident permit and, therefore, agrees that the application for judicial review should be allowed in this respect. The respondent submits, however, that the application for judicial review should otherwise be dismissed because the misrepresentation finding was made fairly and is reasonable.
[5] For the reasons that follow, this application will be allowed. Briefly, the decision turns on the officer’s finding that the applicant used the name Qianchen Ma by using the Ma passport to travel in 2017. The decision must be set aside and the matter redetermined because the procedural fairness letter the applicant received did not make it clear to him that this issue was in play. As a result, the applicant did not have a full and fair chance to address this issue before the decision was made.
II. BACKGROUND
[6] The applicant first came to Canada as a student in 2016 after studying in France for a year. After completing a Master of Business Administration degree at the University of Ottawa in December 2017, the applicant obtained a post-graduate work permit and began working in Ottawa. In April 2018, the applicant applied for and received a nomination from Ontario for permanent residence in the Masters Graduate Stream. Accordingly, in May 2018 the applicant applied for a permanent resident visa.
[7] As part of this application, the applicant completed a Generic Application Form for Canada (IMM0008). Under the heading “Personal Details”
, the applicant identified himself as Rong Le with a date of birth in November 1992. Question 2(a) in this part of the form asked: “Have you ever used any other name (e.g. Nickname, maiden name, alias, etc.)?”
The applicant answered “No”
. Under the heading “Passport”
, the applicant stated that he had a valid Chinese passport bearing number G5361**** with an issue date in 2011and an expiry date in 2021. The applicant also stated that he last entered Canada on September 15, 2017, at Montreal.
[8] In July 2019, the applicant was determined to be eligible for a permanent resident visa. He was therefore asked to submit his passport to IRCC along with two photographs of himself. Since the applicant was out of town, he asked a friend to retrieve his passport from his home and send it to IRCC along with the loose photographs. The IRCC office in Etobicoke, Ontario received the package on July 23, 2019.
[9] After reviewing the items submitted, an officer with IRCC observed that the passport was not in the applicant’s name but, rather, was in the name of Qianchen Ma. As well, the passport had a different number than the one the applicant had provided with his application. Furthermore, the date of birth on the passport was different from the applicant’s. On the other hand, it appeared to the officer that the photograph on the passport and the two loose photographs of the applicant were all of the same person.
[10] Affixed to the passport was a Canadian multiple entry visitor visa in the name of Qianchen Ma issued in 2014 and valid until 2021. Also of note is that the passport contains a departure stamp from China dated October 13, 2017, and an entry stamp for Canada dated October 15, 2017 (P.E. Trudeau International Airport). There are two other stamps on a separate page: one is a departure stamp from China, the other is a visa exemption stamp from Juanda International Airport in Indonesia. Both are dated August 1, 2017.
[11] The officer contacted the applicant by telephone. According to the officer’s notes of the conversation in the Global Case Management System (GCMS), the officer informed the applicant that the passport he submitted had his photograph but not his name or date of birth. The applicant replied that a friend who was staying at his home in Ottawa had sent the passport in for him. The officer stated that the passport IRCC received is not the applicant’s. The applicant responded that he does not know “how that could be.”
The officer informed the applicant that IRCC would be investigating the passport and his visa application would have to be “re-visited”
since IRCC now had “no idea”
of the applicant’s identity. The applicant said he would contact his friend in Ottawa to see what happened. The officer agreed to call the applicant back the next day so they could continue their conversation after the applicant had had a chance to speak to his friend.
[12] The officer spoke to the applicant again the next day (July 24, 2019). The applicant said he had not been able to contact his friend. The applicant asked if he could see the passport IRCC received because “he doesn’t know why it would have his picture on it.”
The officer reiterated that the applicant would not receive a visa until IRCC’s investigation was completed because identity “is now a concern.”
The officer also noted in GCMS that, in their view, having the applicant in for a face to face interview “might be the best way to go since it will give him an opportunity to explain the photo on the passport and make sure it is really him.”
[13] On August 5, 2019, the applicant contacted IRCC by telephone requesting an in-person interview “to clarify passport submission.”
[14] On August 7, 2019, IRCC received correspondence from the applicant. The correspondence is undated but it refers to speaking to an officer “yesterday”
about the passport issue. The correspondence appears to be quoted verbatim in the GCMS notes. According to the notes, the applicant described making arrangements with a friend to retrieve his passport from his home in Ottawa and submit it to IRCC. The applicant explained that he was in Toronto when he received the request for his passport. His friend was also in Toronto at the time but was planning to return to Ottawa before the applicant so the applicant asked his friend if he could take care of this for him. The applicant gave his friend the loose photographs he had also been asked to submit to IRCC. Subsequently, the applicant’s friend gave the applicant the tracking number for the package in which the passport and the loose photographs had been sent to IRCC. By the time IRCC contacted him about the passport, the applicant had returned to Ottawa. He checked the drawer where he kept his passport and found it was still there. The applicant had not been able to contact his friend. Finally, the applicant requested an appointment with IRCC “to clarify”
and to provide his passport.
[15] On October 23, 2019, an interview with the applicant was scheduled for October 28, 2019.
[16] The interview took place as scheduled in Ottawa. A brief summary of the interview was entered in GCMS. According to the notes, the applicant admitted to having had two passports: a real one, which is the one he used to apply for his original study permit and for permanent residence, and a fraudulent one, which a friend in China had given to him as a gift in 2015. The GCMS notes also state that the applicant was unable to explain the stamps in the fraudulent passport or the Canadian visa, which the notes describe as “fake”
. (As discussed immediately below, IRCC also took more detailed notes of the interview.)
[17] Sometime after the October 28, 2019, interview, the applicant obtained notes of the interview from IRCC through an access to information request. The notes are set out in question and answer format. There is no indication who took the notes, nor is there any indication that the applicant (or anyone else) confirmed their accuracy and or completeness at the time. The exact date the applicant received the notes is not clear from the record; however, as discussed below, the applicant had obtained them by the time he provided his response to a procedural fairness letter on December 29, 2023.
[18] According to the more detailed notes, the applicant reiterated his account of why he had asked a friend to retrieve his passport and submit it to IRCC. The notes also state the following:
Do you know who is the person that appears on the passport that you sent us?
I don’t know who the person on the passport is. I was told by Immigration when they called me that the person on the passport was me. But I don’t know who that person is.
Do you have another passport?
Actually, I am going to tell you the truth. I have two passports: the real one and the one my friend sent to Immigration. My girlfriend and my friend told me not to say the truth to Immigration. However, an old lady who is my neighbour advised me to say the truth to Immigration.
Is that other passport fake?
I don’t know maybe.
Where and when did you obtain that passport?
I got this passport in China as a gift around 2015. A friend of mine gave it to me in case something goes wrong. I don’t even know what name appears on that passport.
Have you used that passport?
No and I don’t know who used that passport.
That passport has a counterfeit Canadian visa and an entry stamp into Canada. Who used that passport to enter Canada?
I don’t really know. I brought that second passport with me in my luggage when I came to Canada. But I don’t really know who used it.
[19] The applicant goes on to explain that his friend in China gave him the second passport because he (the applicant) feared being persecuted by Chinese authorities – as had happened to his father – and he might need “a way out”
in case something went wrong. When asked why he would go back to China if he feared Chinese authorities, the applicant responded: “Things got better, so I could go back.”
When asked why he was carrying the second passport in China, the applicant responded: “I don’t know how to explain that to you. Some things happen and I don’t know how to explain them.”
Finally, when asked if he had anything else to add, the applicant stated: “I know it is wrong to have a fake passport and I am ready to assume the consequences of it. Even if you call the police to come and get me, I will face the consequences. I am a good person and I have not done anything bad to anyone.”
[20] Despite the applicant’s initial claim during the interview that he did not know whose photograph is on the Ma passport, there is no issue that it is a photograph of the applicant. This will be addressed further below.
[21] Through diplomatic channels, in early 2023, IRCC asked Chinese authorities to verify the authenticity of the two passports – the one in the applicant’s name and the other in the name of Qianchen Ma. In response, Chinese authorities advised that the information on the biographic page of the applicant’s passport was consistent with their records. On the other hand, while the information on the biographic page of the Ma passport was consistent with their records, the photograph differed from the one in their records. As a result, Chinese authorities determined the Ma passport to be counterfeit. This information was recorded in GCMS as follows: “Rec’d notification from visa office with results from the Chinese authorities. Authorities confirm that passport Rong Le is authentic, while Qianchen Ma is photo sub with authentic details.”
[22] There is no evidence that IRCC took any steps to verify the authenticity of the Canadian visa in the Ma passport (although, as noted above, the applicant was told it was counterfeit) or the authenticity of the stamps in the passport (including the entry stamp for Canada dated October 15, 2017).
[23] On July 24, 2023, IRCC sent the applicant a procedural fairness letter. After stating that the applicant may not meet the requirements for immigration to Canada because it appeared that he may be inadmissible to Canada due to misrepresentation under paragraph 40(1)(a) of the IRPA, the procedural fairness letter states:
Our office has a passport no. E1664**** for you under the name Qianchen Ma which was confirmed to be a photo substitution by the Chinese issuing agency. You also have another genuine passport no G5361**** under the name Rong Le.
This misrepresentation of material fact could have induce [sic] an error in the processing of your permanent resident application, specifically assessing your identity and determining if you are admissible in order to meet R70(1)(e) of the IRPA [referring to paragraph 70(1)(e) of the Immigration and Refugee Protection Regulations, SOR/2002-227] for the issuance of a permanent resident visa.
[24] The procedural fairness letter then states that the applicant would be given an opportunity to “submit additional information relating to this issue”
before a decision was made on his application for a permanent resident visa.
[25] After being granted extensions of time to provide his response, the applicant’s then lawyer submitted a letter on his behalf dated December 29, 2023. Enclosed with the letter were a letter from a psychiatrist, a letter from a psychotherapist, medical records, twenty-four letters of support attesting to the applicant’s good character, and documentation relating to the applicant’s employment in Canada. This information was provided in support of an alternative argument that, if the applicant were found to have misrepresented or withheld a material fact, he should be granted an exemption from inadmissibility on humanitarian and compassionate grounds. Since the applicant has not challenged this aspect of the officer’s decision, there is no need to summarize this evidence.
[26] As I have already noted, by this point (December 29, 2023), the applicant had obtained the more detailed notes of the October 28, 2019, interview with IRCC. Indeed, the notes are quoted verbatim in the response to the procedural fairness letter. There is no suggestion that they are inaccurate or incomplete. It is also evident from the response to the procedural fairness letter that the applicant had obtained the GCMS entries relating to his first request for an in-person interview (see paragraph 13, above), relating to the correspondence he submitted to IRCC in late July or early August 2019 (see paragraph 14, above), and relating to the response from Chinese authorities to the query regarding the authenticity of the two passports (see paragraph 21, above).
[27] The applicant’s lawyer introduced her submissions in response to the misrepresentation allegation as follows:
In his interview with IRCC Ottawa, Mr. Le confirmed that a non-genuine passport had been submitted in response to the passport request. That he was in possession of a non-genuine passport and that this passport was inadvertently submitted to IRCC by a third party are not in dispute.
Mr. Le provided an explanation as to why he was in possession of a non-genuine passport during his interview with IRCC Ottawa, and a document related to his father’s criminal issues in China is provided with these submissions. However, the reason why he acquired the non-genuine passport is somewhat irrelevant, as the allegation of inadmissibility does not stem from his obtaining or being in possession of a fraudulent passport, which would be a matter of criminal inadmissibility. Instead, he is accused of attempting to induce an error in the processing of his permanent residence application. It is alleged he misrepresented a material fact by producing a passport with his photo but another individual’s name and other identifying information [bolding in original, underlining added].
[28] Against this backdrop, through his counsel, the applicant made three arguments for why IRCC should not find that he is inadmissible for misrepresentation. First, the applicant did not have the requisite intention to obtain a benefit by deceiving IRCC. He always wanted the visa to be issued in his own name and never in the name of Qianchen Ma. Put otherwise, the applicant did not submit the Ma passport so that he could be landed under the name Qianchen Ma as opposed to under his own name. Second, the Ma passport was not submitted as proof of identity, which had already been established by other valid documents. Consequently, submitting the Ma passport could not have induced an error in the administration of the Act. Third, the applicant honestly believed he was submitting the correct passport because that is what he had instructed his friend to do. In other words, the submission of the Ma passport was an innocent mistake. The applicant also argued, in the alternative, that, in the event IRCC concluded he had engaged in misrepresentation, there were sufficient humanitarian and compassionate considerations to justify granting him permanent residence despite his inadmissibility.
[29] I would underscore two points here. First, the applicant does not dispute that the Ma passport contained his photograph. While the letter from his lawyer mentions this fact only in passing, the applicant’s affidavit in support of the present application expressly confirms that his photograph was on the Ma passport (see paragraph 21(f) of the affidavit). Second, it is apparent from her response to the procedural fairness letter that the applicant’s lawyer understood the alleged misrepresentation to be the act of submitting the Ma passport to IRCC. She did not understand the misrepresentation to have arisen from the applicant having obtained or possessing the fraudulent passport or from its use as a travel document. Nor did she understand the misrepresentation to have anything to do with information the applicant had provided in the original application for a permanent resident visa.
III. DECISION UNDER REVIEW
[30] In a letter dated April 15, 2024, IRCC refused the applicant’s application for a permanent resident visa as a member of the provincial nominee class because the applicant was found to be inadmissible under paragraph 40(1)(a) of the IRPA. It appears from the GCMS entries that the decision was rendered by the same officer who first spoke to the applicant about the Ma passport in July 2019.
[31] Paragraph 40(1)(a) provides that a permanent resident or foreign national is inadmissible for misrepresentation “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.”
The decision letter states: “You were found inadmissible for misrepresentation for withholding relevant information pertaining to your identities/alias which altered the way this application was processed in order to determine the admissibility requirements to confer permanent residence.”
The letter also states that, having regard to the applicant’s submissions, there were “insufficient factors”
to warrant an exemption from inadmissibility on humanitarian and compassionate grounds under subsection 25(1) of the IRPA.
[32] Additional notes prepared by the officer provide further elaboration of the reasons for finding the applicant inadmissible for misrepresentation. In summary, the officer found as follows:
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The applicant had originally satisfied the officer of his identity as Rong Le with valid identification; however, the officer “was not aware of the applicant’s other identities which would have affected the way I would have processed the application.”
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According to counsel for the applicant, the applicant “did not intend to derive a benefit from the incorrect passport towards his permanent resident visa.”
The officer accepted that this was the case; nevertheless, the applicant “withheld information that could have induced an error on [
sic] the processing of his application and thus determine if he was eligible to receive a permanent resident visa.”
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Despite possessing the fraudulent passport, the applicant “did not mention on his permanent resident application submitted on May 29, 2018, in box #3 the alias name.”
This information “is relevant and serious.”
(While nothing turns on this, I note parenthetically that the officer must be referring to Question 2(a) on the Generic Application Form for Canada (IMM0008). This is the only question that asks about an alias.)
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The purpose of a passport “is to give a person the ability to enter and exit a country and obtain other documents.”
The applicant states that he had the fraudulent passport in his possession from the time he entered Canada in August 2014 until his friend retrieved it from his home in late July 2019. Stamps in the fraudulent passport indicate that the passport was used between August 1, 2017, to August 15, 2017, “from Canada to China.”
The applicant states that he did not use the fraudulent passport and does not know who did but he admits to possessing the passport from 2014 until 2019.
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Without knowing the applicant’s identities, “the processing of the application was altered to not examine the alias name (identity) and thus determine if the applicant was admissible under the assessments for a permanent resident visa as per R70(1)(e).”
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Even if the applicant intended to obtain a permanent resident visa in his own name and did not intend to deceive IRCC, “he may not have met the admissibility requirements to obtain permanent residence.”
The applicant “withheld information i.e. alias, which altered the way the application was processed.”
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In sum, the applicant is inadmissible under paragraph 40(1)(a) of the IRPA “for withholding information that could have induced an error in the processing of [his] permanent resident application.”
[33] Having found that the applicant was inadmissible for misrepresentation, the officer then turned to the submission that the applicant should be granted an exemption from this inadmissibility on humanitarian and compassionate grounds. Since this aspect of the decision has not been challenged, there is no need to summarize the officer’s reasoning on this point.
IV. STANDARD OF REVIEW
[34] The applicable standards of review are not in dispute.
[35] To determine whether the requirements of procedural fairness were met, the reviewing court must examine the process followed by the decision maker and determine whether the process leading to the decision was fair in all the circumstances (Canadian Pacific Railway Co v Canada (Attorney General), 2018 FCA 69 at paras 54-56). Although, strictly speaking, no standard of review is being applied, it has been said that this inquiry is functionally the same as applying a correctness standard (Canadian Pacific Railway Co, at para 54; Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para 35). The determinative questions are whether the applicant knew the case he had to meet in relation to the misrepresentation allegation and whether he had a full and fair chance to meet that case (Canadian Pacific Railway Co, at para 56).
[36] The merits of the officer’s decision are reviewed on a reasonableness standard. Reasonableness review begins by examining the reasons provided and “seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion”
(Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 84). The reasons must be read “holistically and contextually”
(Vavilov, at para 97) in light of the record to determine if they led to a decision that is “based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker”
(Vavilov, at para 85). To set aside a decision on the basis that it is unreasonable, the reviewing court must be satisfied that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
(Vavilov, at para 100).
V. ANALYSIS
[37] In support of this application for judicial review, the applicant swore an affidavit on June 20, 2024. In it, he describes the background to his application for a permanent resident visa, how he came to have a fraudulent Chinese passport, how it came to be submitted to IRCC, and his dealings with IRCC after this happened. The respondent submits that the affidavit improperly presents new evidence and explanations for the applicant’s conduct and, as such, should be disregarded or given no weight. The respondent also submits that parts of the affidavit stray impermissibly into argument. The applicant submits in response that his affidavit is admissible in its entirety. It is necessary to resolve this preliminary objection first before turning to the grounds of review.
A. Is the applicant’s affidavit admissible?
[38] As a general rule, only material that was before the original decision maker may be considered on an application for judicial review. Put another way, generally speaking, “the evidentiary record before the reviewing court is confined to the record that was before the decision maker”
(Gordillo v Canada (Attorney General), 2022 FCA 23 at para 67). As a result, generally speaking, a party to an application for judicial review cannot submit new evidence. See Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at paras 17-20; Bernard v Canada (Revenue Agency), 2015 FCA 263 at paras 13-28; Sharma v Canada (Attorney General), 2018 FCA 48 at paras 7-9; and Andrews v Public Service Alliance of Canada, 2022 FCA 159 at para 18.
[39] This rule is grounded in the respective roles of the administrative decision maker and the reviewing court (Access Copyright, at paras 17-18; Bernard, at paras 17-18; Andrews, at para 18). The administrative decision maker decides the case on its merits; the reviewing court reviews the legality, rationality, and fairness of what the decision maker has done (Vavilov, at paras 13 and 82). If persuaded that the decision under review is flawed in one or more of these respects, the reviewing court must also determine the appropriate remedy under section 18.1 of the Federal Courts Act, RSC 1985, c F-7 (Vavilov, at paras 139-142).
[40] There are exceptions to the general rule. The exceptions are best understood as circumstances where the rationale behind the general rule would not be offended by admitting new evidence (Bernard, at para 14). Thus, exceptions will be made only in situations where the receipt of new evidence “is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker”
(Access Copyright, at para 20).
[41] Three main exceptions have been recognized in the jurisprudence: (1) general background information; (2) evidence to establish the absence of evidence before the administrative decision maker concerning a relevant matter; and (3) subject to a limitation that will be discussed below, evidence relevant to an issue of fairness in the administrative decision making process (Bernard, at paras 20-25). The list of exceptions is not closed. Reviewing courts may receive affidavit evidence falling outside these recognized exceptions as long as it “facilitates their reviewing task and does not invade the administrative decision-maker’s role as fact-finder and merits-decider”
(Bernard, at para 28).
[42] Finally, whether in connection with an application for judicial review or otherwise, an affidavit must be limited to relevant facts within the personal knowledge of the deponent that are presented without gloss, explanation, or argument (Federal Courts Rules, SOR/98-106, rule 81; see also Duyvenbode v Canada (Attorney General), 2009 FCA 120 at paras 2-3; Kouridakis v Canadian Imperial Bank of Commerce, 2025 FC 60 at paras 34-36).
[43] In the context of an application for judicial review, where an affidavit does not abide by these limitations, the usual remedy is to disregard or give no weight to the offending portions (Abdulaziz v Canada (Attorney General), 2025 FCA 213 at paras 11-12).
[44] I begin by observing that the applicant’s affidavit was prepared at the leave stage and before the applicant had access to the complete certified tribunal (CTR). As a result, while parts of the affidavit are now redundant in light of the information in the CTR, there is nothing untoward about this. In fact, it seems almost inevitable given the requirement in Rule 10 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/2002-232, that an applicant must provide one or more affidavits that “verify the facts relied on by the applicant in support of the application”
when seeking leave to proceed with an application for judicial review. Viewed in light of this requirement, I am satisfied that much of the applicant’s affidavit provides unobjectionable background information.
[45] Beyond this, the applicant acknowledges that his affidavit includes new information – that is, information that was not before the administrative decision maker. He has been careful to say that he is only relying on that new information in support of his procedural fairness arguments and not in relation to his challenge to the reasonableness of the decision.
[46] In paragraphs 33 to 35 of his affidavit, the applicant provides evidence that, until he read the officer’s reasons, he did not understand that the concerns about misrepresentation related to his having travelled using the Ma passport. I am satisfied that this evidence is admissible under the third exception set out above – that is, it is relevant to an issue of fairness in the administrative decision making process. The same is true of the applicant’s account in paragraphs 36 and 37 of the affidavit of the steps he would have taken to gather and submit relevant evidence had he understood at the time that this was the officer’s concern.
[47] On the other hand, I have concluded that paragraphs 21 and 23 to 26 of the affidavit are not admissible. In these paragraphs, the applicant asserts that the IRCC notes of the interview on October 28, 2019, are incomplete and he provides information he says he shared during that interview that does not appear in the notes (which the applicant refers to as a transcript). The difficulty for the applicant is that he could (and should) have provided this information as part of his response to the procedural fairness letter. As I have already observed, the applicant had obtained the IRCC notes of the interview by the time he submitted his response to the procedural fairness letter and the response quoted the notes verbatim. If the applicant had any concerns about the accuracy or the completeness of the notes, that was the time to raise them. It is now too late. This is because, as I mentioned above, the procedural fairness exception is subject to an important limitation. This is that evidence relevant to a breach of procedural fairness may be added to the record on judicial review only if it could not have been placed before the administrative decision maker (Bernard, at para 25). The information in paragraphs 21 and 23 to 26 of the affidavit does not meet this requirement. As a result, it is inadmissible and will not be considered on this application.
[48] Finally, I am satisfied that the otherwise admissible parts of the affidavit state matters within the applicant’s personal knowledge and do not include improper gloss, explanation, or argument.
B. Is the decision unreasonable?
[49] As set out above, the officer’s core reasoning can be reduced to the following propositions: (1) the applicant had an alias (Qianchen Ma); (2) the applicant did not disclose this when he answered the question “Have you ever used any other name (e.g. Nickname, maiden name, alias, etc)?”
on form IMM0008; (3) this failure to disclose amounted to misrepresentation within the meaning of paragraph 40(1)(a) of the IRPA because the applicant withheld a material fact relating to a relevant matter that could induce an error in the administration of the Act. Only the first of these propositions is in issue; the third is indisputable if the first two are established and there is no issue that the applicant did not disclose his use of any other name besides his own.
[50] The applicant submits that the officer’s reasoning in support of the finding that he had an alias (Qianchen Ma) depends on the finding that he used the Ma passport. He contends that the latter finding is unreasonable and was made in breach of the requirements of procedural fairness. The respondent submits that the officer’s finding that the applicant had an undisclosed alias is reasonable even if the applicant merely possessed the Ma passport (as he admittedly did) and the decision can be upheld on this basis alone. According to the respondent, since it was therefore not necessary for the officer to also find that the applicant had used the passport as a travel document, the reasonableness of this determination is immaterial to this application for judicial review. Furthermore, the respondent submits, since the decision can be upheld on the basis of possession of the Ma passport alone, this entails that the requirements of procedural fairness were not breached even if the procedural fairness letter did not alert the applicant to any concerns relating to its having been used as a travel document.
[51] I am unable to agree that it is appropriate to recast the decision in the way the respondent suggests.
[52] I begin by observing that, first and foremost, reasonableness review requires discerning the actual reasons of the administrative decision maker. As Vavilov emphasizes, what distinguishes reasonableness review from correctness review “is that the court conducting a reasonableness review must focus on the decision the administrative maker actually made, including the justification offered for it, and not on the conclusion that the court itself would have reached in the administrative decision maker’s place”
(at para 15). The focus of reasonableness review “must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome”
(Vavilov, at para 83). A principled approach to reasonableness review is one that puts the administrative decision maker’s reasons first (Vavilov, at para 84). Attention to the decision maker’s reasons “is part of how courts demonstrate respect for the decision-making process”
(Vavilov, at para 86). As mentioned above, the goal is to understand the decision maker’s reasoning process. The ultimate question is whether the decision maker’s reasons justify the decision to those to whom it applies. It is not enough for the outcome to be justifiable in the sense that it is defensible on some other basis than the one provided by the decision maker (ibid.). Consequently, where the reasons given by an administrative decision maker contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, “it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision”
(Vavilov, at para 96).
[53] In my view, the respondent’s attempt to recast the decision as resting on a narrower foundation than the one actually articulated in the officer’s reasons is inconsistent with these teachings.
[54] It is true that the officer linked possession of the fraudulent passport to the applicant having an alias he did not disclose. However, the officer then goes on to make an express finding that the Ma passport was used for travel during the time it was in the applicant’s possession. The officer’s reasons in this regard reveal some confusion about when the applicant obtained the passport and about the dates of the stamps in the passport but this is immaterial to the finding that someone had used the passport when it was admittedly in the applicant’s possession. Furthermore, while the officer does not say so explicitly, the officer must also have found that it was the applicant who had used the passport (otherwise, use of the passport would be irrelevant). These findings all supported the officer’s conclusion that the applicant had an alias (Qianchen Ma). This, in turn, led to the conclusion that the applicant is inadmissible due to misrepresentation because he did not disclose his use of that alias when he answered question 2(a) on form IMM0008. Critically, the officer did not consider whether, standing on its own, the fact that the applicant possessed the Ma passport was sufficient to support a finding of misrepresentation. Indeed, one can understand why the officer found it necessary to go on to consider whether the applicant had used the Ma passport to travel. On the facts of this case, it is very much an open question whether mere possession of a fraudulent passport in another name that was received as a gift and was never used could reasonably support a finding that the applicant had used that other name. In short, the decision the respondent seeks to defend is not the decision the officer actually made.
[55] If, as I have concluded, the finding that the applicant used the Ma passport is an integral part of the officer’s chain of reasoning supporting the decision that the applicant is inadmissible due to misrepresentation, the next question is whether that finding is reasonable. The applicant submits that it is not and, as a result, there is a fundamental gap in the officer’s chain of analysis that undermines the decision as a whole.
[56] There is no doubt that the officer’s reasoning in this respect could have been articulated more clearly. The finding that it was the applicant who used the passport in 2017 is, at best, implicit in the reasons. To make that finding, the officer must have disbelieved the applicant’s denial that he used the passport yet this is not stated anywhere in the reasons. Nor do the reasons explain why the officer disbelieved the applicant on this critical point. As well, there may be a live issue as to whether the stamps in the passport are genuine or fraudulent yet the officer simply assumes that they are genuine in relying on them as evidence that someone used the Ma passport to travel in 2017. For reasons discussed below, the applicant did not raise this issue in his response to the procedural fairness letter. Nevertheless, even on the record before the officer, there were circumstances warranting further inquiries into the genuineness of the stamps before a decision was made – for example, the fact that the Canadian visa in the Ma passport was apparently counterfeit.
[57] On the other hand, it is still arguable that, given the information available to the officer, a reasonable decision maker could draw the conclusion that the applicant had used the Ma passport. On their face, the stamps in the passport are circumstantial evidence that someone used the passport to travel in August 2017 and again in October 2017. There was no evidence that the stamps are not genuine. According to the applicant, he was given the passport around 2015 and it was in his possession until it was submitted to IRCC in July 2019. A reasonable decision maker could find the applicant’s claim to know nothing about the passport being used unconvincing. Given the stamps on the Ma passport, given that the applicant never said the passport was out of his possession in 2017, and given that the applicant’s photograph was on the passport, a reasonable decision maker could well conclude that it must have been the applicant who used the passport.
[58] At the end of the day, it is not necessary to decide whether the finding that the applicant used the Ma passport is unreasonable. This is because, as I will now explain, the applicant did not have fair notice that this issue was even in play.
C. Were the requirements of procedural fairness met?
[59] There is no dispute that elevated procedural fairness duties were triggered in this case. The officer’s concerns went beyond whether the legislative or related requirements were met on the face of the application for a permanent resident visa. Indeed, those concerns related to whether the applicant was inadmissible due to misrepresentation, a significant issue with potentially serious consequences for the applicant. Accordingly, it was entirely appropriate for the officer to provide the applicant with a procedural fairness letter. The determinative issue is whether the procedural fairness letter communicated the officer’s concerns with sufficient clarity and particularity for the applicant to have a full and fair opportunity to respond (Kaur v Canada (Citizenship and Immigration), 2020 FC 809 at para 42; Asanova v Canada (Citizenship and Immigration), 2020 FC 1173 at para 32; Nguyen v Canada (Citizenship and Immigration), 2024 FC 1329 at para 18). In my view, it did not.
[60] To repeat for ease of reference, in material part, the procedural fairness letter stated:
Our office has a passport no. E1664**** for you under the name Qianchen Ma which was confirmed to be a photo substitution by the Chinese issuing agency. You also have another genuine passport no G5361**** under the name Rong Le.
This misrepresentation of material fact could have induce [sic] an error in the processing of your permanent resident application [. . .].
[61] In my view, the letter falls well short of communicating the officer’s concerns because it is entirely unclear what “this misrepresentation”
refers to. The juxtaposition of the two facts stated in the preceding paragraph – IRCC has a fraudulent passport for the applicant under the name Qianchen Ma and the applicant also has a genuine passport under the name Rong Le – sheds no light on what the alleged misrepresentation consists of. The applicant’s former lawyer reasonably understood the concern to be that the applicant had submitted the Ma passport to IRCC but it is evident from the officer’s reasons that this was not the concern at all.
[62] As discussed above, the reasons reveal that the officer’s concern was two-fold: first, the applicant appeared to have used another name (Qianchen Ma) besides his own (by using the Ma passport to travel); and second, the applicant failed to disclose this fact when, in response to the question “Have you ever used any other name (e.g. Nickname, maiden name, alias, etc.)?”
, he answered “No”
. Given how the procedural fairness letter was worded, the applicant had no way of knowing that this was the officer’s concern.
[63] This is so even if the letter is read in the context of the applicant’s prior dealings with IRCC. It is true that the applicant was asked whether he had used the Ma passport in the October 2019 interview. However, the applicant would have had no reason to think IRCC did not accept his denial or that this was still a concern nearly three years later. Certainly, the procedural fairness letter did not suggest it was. Even more to the point, the applicant was not asked about his answer to Question 2(a) on form IMM0008 at the interview or, indeed, at any other time. At no time in his dealings with IRCC was it put to the applicant that he had used another name besides his own and, therefore, had not answered Question 2(a) correctly.
[64] These conclusions are buttressed by the applicant’s unchallenged sworn evidence that it was not until he read the officer’s reasons that he understood that the misrepresentation concern arose from his apparently having travelled using the Ma passport.
[65] In sum, the crux of the misrepresentation concern was that, when he applied for a permanent resident visa, the applicant failed to disclose that he had used another name besides his own (by travelling using the Ma passport). This concern was never communicated to the applicant. Consequently, the applicant did not have a meaningful – indeed, any – opportunity to attempt to meet that concern. Among other things, the applicant was denied the opportunity to obtain and present evidence that he was in Canada when the Ma passport was allegedly used for international travel. Given the opaque wording of the procedural fairness letter, the applicant would have had no idea that such evidence was relevant to the officer’s concerns.
[66] Since the process followed by the decision maker did not comply with the requirements of procedural fairness, the decision finding the applicant inadmissible due to misrepresentation must be set aside and the matter reconsidered.
VI. CONCLUSION
[67] For the reasons set out above, the application for judicial review will be allowed. As I stated at the outset, the respondent agrees that the applicant’s request for a temporary resident permit must be reconsidered. The decision finding the applicant inadmissible due to misrepresentation must also be reconsidered because the process leading to that decision did not meet the requirements of procedural fairness. Accordingly, the decision dated April 15, 2024, will be set aside. The applications for a permanent resident visa and, in the alternative, for a temporary resident permit will be remitted for redetermination by a different decision maker.
[68] The parties did not suggest any serious questions of general importance for certification under paragraph 74(d) of the IRPA. I agree that no question arises.
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