Docket: IMM-3913-24
Citation: 2026 FC 30
Toronto, Ontario, January 9, 2026
PRESENT: The Honourable Justice Battista
|
BETWEEN: |
|
PRISCILLA FAITH AGYEMANG |
|
Applicant |
|
and |
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION |
|
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant seeks judicial review of the decision to refuse her study permit application because she is inadmissible for misrepresentation under subsection 40(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. For the reasons below, the decision did not comply with the high procedural fairness requirements for misrepresentation findings, and the application for judicial review is granted.
II. Background
[2] The Applicant is a Ghanaian citizen who filed a study permit application based on her acceptance to study at Niagara College in Welland, Ontario. As proof of her financial capacity, the Applicant provided a letter of financial sponsorship from her father, and her father’s savings account statement (“the Bank Statement”
) from Prudential Bank.
[3] The visa office responsible for the application sent the Applicant a procedural fairness letter (PFL) expressing concerns about the genuineness of the Bank Statement, asking to explain how she obtained the document and “why it was submitted in support of this application.”
[4] The Applicant provided a brief letter explaining that she obtained the document after her father requested it, and that it was submitted as proof of support in her study permit application. She also attached a signed letter from Mr. Kwadwo Frimpong, Operations Manager at the bank, confirming the existence of the account, the date that it was opened, and the account balance (“the Frimpong Letter”
).
[5] The Applicant was subsequently notified that her application was refused based on misrepresentation under subsection 40(1) of IRPA. The Global Case Management System (GCMS) notes of the Officer, which form part of the reasons, state: “Agymang [
sic] has submitted 2 fraudulent documents, one being in response to PFL. Application refused A40.”
[6] Because of the alleged breach of the Applicant’s participatory rights, it is helpful to set out the following facts that were not within the Applicant’s knowledge prior to the refusal of the application:
-
-The visa office responsible for her application, the High Commission of Canada in Accra, contacted the Applicant’s father’s bank to confirm the genuineness of the Bank Statement she submitted in support of her application.
-
-The bank responded by stating that they could not confirm the stamp affixed to the Bank Statement and asked the visa office to inquire about the source of the statement and the stamp affixed to it.
-
-After receiving the Applicant’s response to the PFL, the visa office again wrote to the bank to confirm the Frimpong Letter.
-
-The bank responded to the visa office that the statement of the Applicant’s father is “fake”
because “the signature and the stamp on the statement”
is not from the identified branch.
III. Issues and Standards of Review
[7] The Applicant challenges the fairness of the process that led to the decision to determine her inadmissible for misrepresentation, and the reasonableness of the decision.
[8] In matters of procedural fairness, no standard of review applies. Rather, a reviewing court asks, “with a sharp focus on the nature of the substantive rights involved and the consequences to the individual, whether a fair and just process was followed”
(Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54. See also Hundal v Canada (Public Safety and Emergency Protection), 2022 FC 1482 at para 4).
[9] A decision’s reasonableness is considered pursuant to the reasonableness standard set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], affirmed in Mason v Canada (Citizenship and Immigration), 2023 SCC 21. A reasonable decision must bear the hallmarks of justification, transparency and intelligibility (Vavilov, at para 99).
IV. Analysis
A. Procedural fairness
[10] The Applicant argues that procedural fairness was breached in three ways: first, the PFL failed to disclose the basis of the Officer’s concerns; second, no opportunity was provided to her to address concerns regarding the Frimpong Letter; and finally, the reasons for refusal are unreasonable because they are scant and contain no explanation or analysis.
[11] The Respondent states that the issuance of a procedural fairness letter expressing concern with the genuineness of the Bank Statement was sufficient to meet the standards of procedural fairness in this case and that the Officer’s reasons were adequate.
[12] The impugned decision in this case is the finding of inadmissibility based on misrepresentation. This finding arose in the context of a study permit application, but the operative cause of the application’s refusal was the finding of inadmissibility due to misrepresentation. Therefore, a determination of procedural fairness standards applicable to misrepresentation findings is required.
(1) The Baker factors require a high level of procedural fairness for misrepresentation findings
[13] Jurisprudence from the Supreme Court of Canada (SCC) instructs that the content of procedural fairness is “eminently variable”
and its content is to be decided in the context of each case (Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] S.C.R. 817 [Baker] at para 21).
[14] In determining the content of procedural fairness in the context of a specific case, it is necessary to first determine the level of procedural fairness applicable to the relevant category of decision-making, which in the present case involves misrepresentation findings. Levels of fairness are typically measured on a scale of low to high, and they are established using the contextual factors described in Baker (at paras 23-28).
[15] Many decisions of this Court have applied high or very high levels of procedural fairness to misrepresentation findings (Nguyen v Canada (Citizenship and Immigration) 2025 FC 1894 at para 2; Ge v Canada (Citizenship and Immigration), 2017 FC 594 at para 28; Lin v Canada (Citizenship and Immigration), 2019 FC 1284 at paras 24-25; Ni v Canada (Citizenship and Immigration), 2010 FC 162 at para 18; Tarabein v Canada (Citizenship and Immigration), 2017 FC 1096 at para 5; Kaur v Canada (Citizenship and Immigration), 2012 FC 273 at para 13). The Court has also relied upon Ministerial policy, as it previously existed, advising that “very high”
procedural fairness standards are applied to misrepresentation findings (Menon v Canada (Citizenship and Immigration), 2005 FC 1273 at para 15).
[16] Other decisions have placed the level of fairness at a “more than minimum”
or “somewhat elevated”
level when the finding is based on an underlying application which involves a lower level of procedural fairness (Kaur v Canada (Citizenship and Immigration), 2022 FC 270 [Kaur 2022] at paras 24, 27; Samra v Canada (Citizenship and Immigration), 2024 FC 1649 at para 18). In Kaur, the Court noted that the jurisprudence is “divided”
on whether a higher level of procedural fairness is owed in misrepresentation findings arising from work permit applications (Kaur 2022, at para 24). The Court’s jurisprudence to date has not applied an analysis for the determination of the appropriate procedural fairness levels for misrepresentation findings based on Baker.
[17] For the reasons below, the contextual factors from Baker require a high level of procedural fairness for refusals based on misrepresentation, regardless of the type of application underlying the misrepresentation determination.
(a) The nature of the decision and the process followed in making it
[18] The first factor for determining the level of procedural fairness compares the nature of the administrative process to the judicial process (Baker, at para 23). Administrative decisions resembling and applying processes close to a trial model call for higher procedural fairness standards.
[19] Misrepresentation determinations do not involve the application of broad discretionary standards. They are based on precise statutory criteria described in subsection 40(1), including the requirements for “material facts”
relating to a “relevant matter”
that “induces or could induce an error in the administration”
of the IRPA. While hearings are not required for misrepresentation determinations, an opportunity to be heard is provided through the issuance of PFLs allowing subjects to address concerns regarding misrepresentation inadmissibility. This additional step in the process, combined with the non-discretionary, specific nature of the test under subsection 40(1), suggest a high level of procedural fairness.
[20] As stated above, some decisions of the Court have reduced procedural fairness standards for misrepresentation determinations presumably due to lower procedural fairness standards in the underlying application which gave rise to the misrepresentation concern. With respect, I do not believe this is appropriate.
[21] The jurisprudence of this Court that has assigned high procedural fairness standards to misrepresentation findings has done so primarily due to the consequences flowing from such findings. Those consequences, described further below, are not mitigated if the misrepresentation finding arises from an application with a lower level of procedural fairness.
[22] For example, jurisprudence has assigned lower procedural fairness standards to temporary residence applications because of the ability of applicants to immediately re-apply (Al Omari v Canada (Citizenship and Immigration), 2017 FC 727 at para 26; Li v Canada (Minister of Citizenship and Immigration), 2001 FCT 791 at para 47). The option of immediately re-filing does not exist for temporary resident applications leading to subsection 40(1) determinations. In fact, as discussed below, the opposite is true.
[23] In my view, when the determinative finding leading to an application’s refusal is misrepresentation under subsection 40(1), that determination alone provides the basis for assessing the appropriate level of procedural fairness.
(b) The nature of the statutory scheme and other indications in the statute
[24] The second relevant factor examines the potential recourse for the decision within the statute, and “other surrounding indications in the statute”
that indicate a higher level of procedural fairness (Baker, at para 24). A high level of finality requires a high level of procedural protection (Canada (Attorney General) v Timson, 2012 FC 719 at para 14; South East Cornerstone School Division No. 209 v Oberg, 2021 SKCA 28 at paras 55-57; Buryn v Alberta (Minister of Municipal Affairs), 2017 ABQB 613 at para 43).
[25] There is no appeal for misrepresentation findings except for refused sponsored spouses, common-law partners and children who have access to the Immigration Appeal Division pursuant to subsection 64(3) of the IRPA. Most misrepresentation decisions can only be judicially reviewed on the deferential standard of reasonableness, with leave of this Court.
[26] Aside from judicial review, recourse from the consequences of misrepresentation findings may be pursued on humanitarian and compassionate (“H&C”
) grounds in subsection 25(1) for permanent resident applications (See Sedki v Canada (Citizenship and Immigration) 2021 FC 1071 at paras 108-111; appeal dismissed without a determination of the merits: Canada (Citizenship and Immigration) v Sedki, 2022 FCA 179), and through temporary resident permits for temporary resident applications (IRPA, s 24).
[27] However, relief from both of these mechanisms is discretionary, processing times can be lengthy, and the stigma of dishonesty arising from misrepresentation findings (Likhi v Canada (Citizenship and Immigration), 2020 FC 171 at para 27 [Likhi]; Osman v Canada (Citizenship and Immigration), 2021 FC 1279 [Osman] at para 24) renders their effectiveness as a recourse illusory. For example, policy guidelines for temporary resident permits specifically identify “program integrity”
as a relevant consideration for relief , reducing the likelihood that a TRP would be issued to overcome a misrepresentation finding. (Canada, Government of Canada, Temporary Resident Permits (TRPs): Eligibility and Assessment (Ottawa: Citizenship and Immigration, 2024) online:<www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/permits/eligibility-assessment.html>).
[28] Another statutory indication relevant to procedural fairness standards for misrepresentation findings is the availability of subsection 16(1) of the IRPA, which imposes an obligation of truthfulness on applicants. Subsection 16(1) 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.
[29] Subsection 16(1) “does not cascade into a subsection 40(1) finding”
and “stands on its own criteria and consequences”
(Mescallado v Canada (Citizenship and Immigration), 2011 FC 462 at paras 20-21). Although both subsections target deceit, the text of subsection 16(1) is broader and the consequences are significantly less harsh:
Although they both deal with deceitful conduct, subsection 16(1) and paragraph 40(1)(a) are separate provisions with different applications and consequences; the application of paragraph 40(1)(a) requires the elements of materiality and relevance and brings with it the stigma of being inadmissible to Canada for five years, none of which are applicable in the context of a breach of subsection 16(1) of the Act, which is much broader.
(Osman, at para 24. See also Ganeshalingam v Canada (Citizenship and Immigration) 2024 FC 1437 at para 37)
[30] Distinctions between subsection 16(1) and subsection 40(1) therefore include the following:
-
-There is a requirement for materiality in the misrepresentation under subsection 40(1) but no requirement for materiality in subsection 16(1) (Mescallado, at paras 17-18);
-
-Subsection 16(1) can lead to the refusal of any application through non-compliance with the IRPA (IRPA, s 11(1)), but it can only lead to inadmissibility in the case of foreign nationals (IRPA, s 41(a)), whereas subsection 40(1) always results in inadmissibility and applies to both foreign nationals and permanent residents;
-
-Because subsection 16(1) does not entail the 5-year prohibition period attached to a misrepresentation finding under subsection 40(1), it does not preclude the immediate refiling of an application;
-
-the scope of subsection 16(1) is in one respect narrower than subsection 40(1) because it applies only in the context of applications, such as applications to enter Canada, or applications to renew immigration status documents. In contrast, subsection 40(1) applies to misrepresentations by all permanent residents or foreign nationals regardless of whether they are also making an application. Despite this distinction, a review of the Court’s jurisprudence reveals that misrepresentation findings in practice are very rarely if ever detached from the application context.
[31] In my view, the statutory scheme including Parliament’s offer of two statutory provisions as options to deal with deception under the IRPA — one more general and less consequential, the other more specific with substantially higher consequences — supports high procedural fairness requirements for subsection 40(1) determinations.
(c) The importance of the decision to the individuals affected
[32] The SCC has described the importance of a decision to an affected individual as a “significant factor”
in determining the level of procedural fairness (Baker, at para 25). The prospect of severe consequences therefore imbues a decision with great importance to an individual and requires high standards of procedural fairness.
[33] As noted above, this Court’s jurisprudence has assigned a high level of procedural fairness to misrepresentation findings predominantly because of the five-year period of inadmissibility imposed by subsection 40(2)(a) (the “prohibition period”
) (Likhi, at para 27; Chahal v Canada (Citizenship and Immigration), 2022 FC 725 at para 21). The prohibition period applies uniformly by statute to a broad range of conduct, whether “directly or indirectly,”
or if it “induces or could induce an error in the administration of this Act,”
leaving no discretion for an officer to reduce the period in less serious situations, such as those involving indirect misrepresentation by third parties or minors (Kaur v Canada (Citizenship and Immigration), 2023 FC 1454 at paras 24-27; Sohrabi v Canada (Citizenship and Immigration), 2012 FC 501 at paras 20-22; Shao v Canada (Citizenship and Immigration), 2023 FC 973 at paras 15, 24).
[34] The prohibition period can be longer than five years in the case of a person in Canada subject to the enforcement of a removal order because it does not begin until the order is enforced (IRPA, ss 40(2)(a) and 49). The five-year period of inadmissibility also results in a significantly longer periods for permanent resident applicants, because they are unable to apply for permanent residence during the five-year period. In this way, Parliament has effectively added application processing times to the five-year consequence for misrepresentation inadmissibility for permanent resident applicants, and depending on the category of permanent residence, these processing times can add one to 10 years to the five-year prohibition period.
[35] Within the permanent residence stream, there are not many economic, family reunification or other relocation goals that would survive a delay of six-to-10-years, or longer. In the temporary residence stream, there are not many job offers or acceptances to study that would outlast five years. Moreover, persons wishing to enter Canada after the expiry of their inadmissibility must apply for a visa and meet selection criteria in place at that future time; there is no “automatic right”
to access Canada later (de Guzman v Canada (Minister of Citizenship and Immigration) 2005 FCA 436 [de Guzman] at para 41). For these reasons, inadmissibility under subsection 40(1) can reasonably be expected to foreclose a person’s expectation of ever relocating to Canada.
[36] In addition to foreclosing any realistic future relocation to Canada, misrepresentation findings expose applicants to the following consequences:
-
-The inadmissibility of an applicant’s family members for the five-year period in subsection 40(2)(a) based upon subsection 42(1)(a) of the IRPA which specifies that a foreign national, other than a protected person, is inadmissible if their accompanying family member is inadmissible.
-
-The stigma of deceit or untruthfulness (Likhi, at para 27; Osman, at para 24);
-
-Prejudice to an applicant’s ability to travel to the United States, the United Kingdom, Australia and New Zealand based on the sharing of their Canadian immigration histories with those countries (Immigration and Refugee Protection Regulations, SOR/2002-227 ss 315.22, 315.23, 315.25, 315.37, 315.38, 315.41(2));
-
-The risk of criminal prosecution, with penalties up to five years imprisonment, if the misrepresentation is believed to have been committed “knowingly”
(IRPA, ss 127(1)(a), and. 128.See e.g., R v Singh, 2019 ABPC 37).
[37] Parliament also has wide authority to impose additional sanctions for misrepresentation across IRPA’s divisions and regulations (de Guzman, at para 38).
[38] Misrepresentation findings under subsection 40(1) therefore carry severe consequences and as a result they have great importance to affected individuals. This factor calls for extensive procedural fairness rights.
[39] Although it is not relevant to establishing the level of procedural fairness rights under subsection 40(1), the systemic impact of increased litigation arising from misrepresentation findings is worth noting. As demonstrated in the Court’s jurisprudence, presumably due to the severe consequences attached to misrepresentation findings, applicants are highly motivated to challenge such findings in Court if any basis of unfairness or unreasonableness is detected in these decisions such determinations.
(d) The legitimate expectations of the person challenging the decision
[40] While the doctrine of legitimate expectations does not give rise to substantive rights (Baker, at para 26), if a public authority “has consistently adhered to certain procedural practices in the past in making such a decision, the scope of the duty of procedural fairness owed to the affected person will be broader than it otherwise would have been”
(Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 94).
[41] The Respondent’s consistent practice of issuing PFLs as reflected in this Court’s jurisprudence demonstrates the importance of a subject’s participation in the misrepresentation determination, suggesting strong procedural fairness rights.
(e) The choices of the procedure made by the agency
[42] As noted above, the issuance of PFLs is a regular practice in misrepresentation determinations. It is not entirely accurate to describe the issuance of PFLs as a procedural “choice”
; the process is not a courtesy, it is the execution of procedural fairness standards required by the statutory context.
[43] The purpose of PFLs in the misrepresentation context is to ensure the full participatory rights required when severe consequences may result “so that the applicant can present his or her version of the facts and correct any errors or misunderstandings”
(Maghraoui v Canada (Citizenship and Immigration), 2013 FC 883 [Maghraoui] at para 22). In this way, PFLs provide fairness in the pursuit of truth. The Respondent’s “choice”
to use PFLs in the misrepresentation context responds to the severity of potential consequences in the outcome and support high procedural fairness standards.
(f) Conclusion on the level of procedural fairness owed in misrepresentation findings
[44] Subsection 40(1) is a provision with severe consequences that is applied broadly to direct and indirect misrepresentations, including the withholding of information, that has the potential to induce an error in the administration of the IRPA.
[45] Subject to the Charter, Parliament has the authority to attach a wide array of consequences to findings of inadmissibility under the IRPA. However, procedural fairness standards must be placed at a uniformly high level in misrepresentation determinations because the combination of a provision’s severe consequences, its broad application and anything less than high procedural fairness standards is a recipe for the erosion of the rule of law. And as the rule of law erodes, society’s faith in its governance institutions eventually follows.
(2) The application of high procedural fairness standards for misrepresentation determinations requires full disclosure of misrepresentation concerns and reasons that respect high levels of fairness
[46] The high procedural fairness standards required for misrepresentation findings implicate the scope of disclosure and the duty to provide reasons.
(a) Disclosure
[47] The high procedural fairness standards attached to misrepresentation determinations require full disclosure of an officer’s concerns as reflected in their file notes, as well as the disclosure of extrinsic evidence which gives rise to those concerns.
[48] A fundamental right within standards of procedural fairness is the right of persons to know the case against them, and this gives rise to disclosure obligations (Brown v Canada (Citizenship and Immigration), 2020 FCA 130 at para 142). As noted by Justice Sebastien Grammond, disclosure facilitates the search for the truth by providing parties with access to evidence that may bolster their position (Mawut v Canada (Public Safety and Emergency Preparedness), 2021 FC 1155 [Mawut] at para 29).
[49] The principle animating the duty to disclose was summarized in the following way by Justice Grammond after he conducted an analysis of disclosure requirements in other contexts:
Thus, in both civil and criminal law, the concept of relevance is defined broadly in the context of pre-trial disclosure. It is assessed through the lens of reasonable possibility, that is, by asking whether the information can possibly assist the other party in building its case. Thus, disclosure is required even if it is not certain that the evidence will advance the other party’s case.
(Mawut, at para 33)
[50] Because of the liberty interests at stake, Justice Grammond found that the disclosure principle requires full disclosure in the detention context. In my view, this principle is equally applicable to the misrepresentation determination process, which calls for high procedural fairness standards mainly because of the severe consequences involved, including severe restrictions on international mobility rights and the possibility of criminal prosecution.
[51] Some jurisprudence from the Court applies a more relaxed standard of disclosure to misrepresentation determinations, requiring disclosure of only the “gist”
of an Officer’s concerns (El Rifai v Canada (Citizenship and Immigration), 2024 FC 524 [El Rifai] at para 4; Wang v Canada (Citizenship and Immigration), 2024 FC 1965 at para 38; Arevalo Pelaez v Canada (Citizenship and Immigration), 2025 FC 1191 at para 29). These decisions do not apply the high procedural fairness standards required by Baker for misrepresentation determinations.
[52] The “gist”
approach to disclosure appears to originate from a decision involving inadmissibility for membership in a terrorist organization (Krishnamoorthy v Canada (Citizenship and Immigration) 2011 FC 1342 [Krishnamoorthy] at para 36). No level of procedural fairness was identified in the decision, and no application of the Baker factors was conducted, but Justice Richard Mosely still concluded that the Applicant in that case was entitled to advance disclosure of the allegations against him contained in documents from Canadian security agencies (Krishnamoorthy, at paras 37-40).
[53] The “gist”
approach has been applied in the context of temporary resident applications (See e.g. El Rifai at paras 1, 4; Nguyen v Canada (Citizenship and Immigration), 2025 FC 1894 at paras 1, 20), and has been recently generalized to apply to the entire immigration context (Arevalo Pelaez, supra at para 29). However, as explained below, the “gist”
approach to disclosure is not compatible with the high procedural fairness standards required in misrepresentation determinations and in many other areas of immigration law. Given the contextual nature of procedural fairness determinations, it is therefore inappropriate to apply this approach to the entire immigration context.
[54] The uniform application of the “gist”
approach to disclosure is problematic because it is not a sufficiently clear concept for the application of high procedural fairness standards. Due to its lack of clarity, the “gist”
approach has a propensity to generate uncertainty, unfairness, as well as litigation, which sees the Court regularly called upon to arbitrate the competing perspectives of the parties as they navigate the application of ambiguous terminology.
[55] The impropriety of the “gist”
approach to disclosure in the PFL process for misrepresentation is that it provides as a starting point a general discretion to decision makers to decide how much of their concerns to disclose. This discretion is not compatible with the high procedural standards required for the process based on the Baker factors. The scope of disclosure is not defined by what a decision maker considers to be necessary; it is defined by the fundamental principle animating disclosure, which is that all information that can “possibly assist the other party in building its case”
should be disclosed (Mawut, at para 33).
[56] When decision makers apply their personal interpretation of the meaning of “gist,”
applicants have widely varying capacities to respond to concerns depending on the idiosyncratic disclosure choices made by the decision maker assigned to their matter. This is unfair because it introduces a degree of arbitrariness that is not compatible with high procedural fairness requirements. As procedural fairness standards rise, discretionary options to execute those standards must necessarily diminish so that an applicant's fate does not rest on the luck of the draw among administrative decision makers.
[57] The unfairness of the “gist”
approach to disclosure is also illustrated by the fact that full disclosure of misrepresentation concerns is revealed after the decision in the judicial review record, rather than before the decision, in the PFL. In my view, however, an officer’s misrepresentation concerns that are appropriate for full disclosure to the applicant and the world in a public record on judicial review should be fully disclosed to the applicant at the PFL stage where the purpose is, after all, fairness.
[58] As mentioned above, at a practical level, when decision makers act on their discretion under the “gist”
approach to withhold some or all of their concerns, misrepresentation refusals regularly end up in this Court for an adjudication of the parties’ differing positions on the propriety of this exercise of discretion. An invitation to decision makers to provide a summary of such concerns and evidence is, in this way, an invitation for litigation to determine issues related to the adequacy of the summary. This is unfair and unnecessary, particularly when the Officer’s concerns and the external evidence are subsequently disclosed to applicants in the record upon judicial review.
[59] Moreover, the limited nature of judicial review — including the limited capacity of many applicants to initiate judicial review proceedings — does not provide sufficient recourse to remedy unfair exercises of discretion. The routine operational work of ensuring procedural fairness is more appropriately placed at the administrative decision-making level rather than the judicial level.
[60] In my view, this entails the full disclosure of the Officer’s concerns as described in the GCMS or file notes, and, given the frequently inextricable link between extrinsic evidence and misrepresentation concerns, the duty of disclosure should include extrinsic evidence giving rise to misrepresentation concerns.
[61] There is a lengthy history of decisions from this Court requiring the disclosure of extrinsic evidence to meet procedural fairness standards (Kniazeva v Canada (Citizenship and Immigration), 2006 FC 268 at para 21; Campbell Hara v Canada (Citizenship and Immigration), 2009 FC 263 at para 23; Sharma v Canada (Public Safety and Emergency Preparedness), 2022 FC 779 at paras 27-34). Stemming from this jurisprudence, over a decade ago Justice Yves de Montigny stated: “This entails that an officer’s reliance on extrinsic evidence without allowing an applicant the opportunity to know and reply to that evidence amounts to procedural unfairness”
(Chawla v Canada (Citizenship and Immigration), 2014 FC 434 at para 14 [emphasis added]).
[62] I agree that not “all documents in the Officer’s possession”
need to be disclosed to an applicant (El Rifai, at para 4) in every misrepresentation determination. There will understandably be circumstances in which qualified disclosure can be justified based on issues such as privilege or national security (Maghraoui, at para 22; Amiri v Canada (Citizenship and Immigration), 2019 FC 205 at paras 33-35; Brown v Canada (Citizenship and Immigration), 2020 FCA 130 at para 145-6) or when the high volume of information giving rise to concerns justifies providing a summary.
[63] However, where a document or information external to the application gives rise to specific concerns, high procedural fairness standards and the underlying principle of disclosure requires disclosure of the document or information unless a justification for non-disclosure is provided. Such a justification will rarely be sufficient if it is based solely on a third party’s request for the information to be kept confidential, as occurred in the present case.
[64] This approach to the disclosure of extrinsic evidence is consistent with the Respondent’s policy on extrinsic evidence in the H&C permanent residency application process, which states:
Extrinsic evidence suggesting inadmissibility:
Information may come from the applicant (intrinsic information), or from some other source (extrinsic information). When it appears that the decision will be negative because of information obtained from someone other than the applicant, procedural fairness requires that you inform the applicant, providing an opportunity to respond before making a decision.
You must share releasable extrinsic information with the applicant and allow them to make submissions on it before the information is used in the decision.
Canada, Government of Canada, :Humanitarian and Compassionate: Dealing with Inadmissibility” (Ottawa: Citizenship and Immigration, 2017) online: www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/humanitarian-compassionate-consideration/processing/dealing-with-inadmissibility.html
[Emphasis added]
[65] The H&C application process has arguably lower than high procedural fairness standards (Baker, at para 32). The Respondent’s policy guidelines requiring disclosure of extrinsic evidence in that context are persuasive that all “releasable”
extrinsic evidence should be shared with applicants subject to a misrepresentation determination, which engages high procedural fairness standards.
[66] At the hearing of this application, I asked counsel for the Respondent if there was any reason why an officer’s concerns arising from extrinsic evidence included in a judicial review record could not be fully provided to an applicant during the PFL process. Her first response was that full disclosure is not currently required by the Court’s jurisprudence. She then added that full disclosure may add to the administrative burden of decision makers.
[67] Administrative burden concerns have also been raised regarding other procedural fairness requirements (See e.g. Baker, at para 40). To address this concern, it can first be observed that fairness, a conceptual close relative of justice, may often be cumbersome and time consuming. Democratic societies are generally willing to pay this price.
[68] Second, it is difficult to see any additional or onerous burden on decision makers in requiring them to fully disclose their misrepresentation concerns. Given that such concerns will be reflected in their file notes, the notes can simply be copied and pasted into a PFL. If the concerns arise from extrinsic evidence, such evidence can be attached to a PFL. In any case, any saving of administrative effort at the operational level is a systemic false economy because it simply shifts the administrative burden of ensuring procedural fairness to the judicial level.
[69] If procedural fairness standards should prove too onerous in certain subsection 40(1) determinations, Parliament has provided another option for decision makers: subsection 16(1). As we have seen, subsection 16(1) determinations target deception but are less analytically rigorous and involve significantly less severe consequences, therefore presumably lower procedural fairness standards are required. In the present case, the Officer in fact considered the use of subsection 16(1) but gave no reasons for preferring subsection 40(1). This may be unreasonable in light of the individual impact constraint (Vavilov, at para 133-135; Kimotho v Canada (Citizenship and Immigration), 2025 FC 1719 at paras 33-35) but this issue was not argued before me.
[70] Another possible concern with the full disclosure approach for misrepresentation is that a decision maker faced with an uncomfortable — but fair — duty of full disclosure might pare down concerns reflected in their notes so that the bare minimum will be disclosed. This “lack of candour”
concern has also been raised previously (Baker, at para 40). However, there is minimal risk in this concern given that a decision maker’s reasons reflecting concerns are subject to robust reasonableness review constraints (Vavilov, at paras 99-107).
[71] Full disclosure requirements for misrepresentation findings will result in a change in the current practice for misrepresentation determinations, however the current practice results in severe consequences including the effectively permanent separation of family members, the foreclosure of economic contributions and severe restrictions on mobility based on fully or partially concealed concerns and evidence.
[72] In Baker, the SCC ruled that the requirements of discretionary administrative decisions include consistency with the fundamental values of Canadian society (Baker, at para 56). One of those fundamental Canadian values is surely that people do not face severe consequences under the law based on concealed information or evidence.
(b) The duty to provide reasons indicative of an independent analysis
[73] It is clear from Vavilov and Baker that a decision maker’s absent or inadequate reasons can raise substantive reasonableness and/or procedural fairness concerns (Vavilov, at paras 99-107; Baker, at paras 35-44). However, the boundary between the two types of concerns is often blurry.
[74] In my view, deficient reasons raise procedural fairness concerns when they impact participatory rights. This connection between the duty of fairness and the duty to provide reasons was clarified by the SCC:
I emphasize that underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.
(Baker, at para 22)
[75] Reasons relate to participatory rights because they provide an assurance that the applicable issues and views of an affected party have been accurately considered, and that a party has been treated fairly. Accordingly, they assist a party in determining whether a reviewable error exists.
[76] In Baker, for example, the decision maker’s reasons revealed that the applicant’s participatory rights were adversely affected because she was deprived of an unbiased decision maker (Baker, at paras 45-48).
[77] In my view, procedural fairness is also jeopardized when reasons reveal an absence of independent assessment of the relevant evidence, thereby affecting an applicant’s participatory rights.
[78] Early decisions of this Court have found that the principle of “whoever hears must decide”
is not applicable to administrative decisions that are not of a judicial or quasi-judicial nature (See e.g. Ayatollahi v Canada (Minister of Citizenship and Immigration), 2003 FCT 248 at paras 13-15; Zhang v Canada (Minister of Citizenship and Immigration), 2005 FC 1313 at paras 27-29; Shah v Canada (Minister of Citizenship and Immigration), 2006 FC 1131 at paras 22-24; Silion v Canada (Minister of Citizenship and Immigration), 1999 CanLII 8608 (FC) at para 11). These decisions involve factual contexts in which an administrative officer who made inquiries and collected information was not the ultimate decision maker.
[79] A distinct situation arises when a decision maker relies substantially on an outside source for their conclusion, thereby fettering their discretion. This concern is described in IRCC policy, procedures and guidance:
The record of decision must also show that the decision-maker weighed all relevant factors, including all submissions by the applicant, and that they made their own decision based on the merits of the application.
If a decision is based on subjective assessments (e.g. credibility), then it must be clear on the record that the decision-maker made the assessment. The decision-maker should not rely on someone else's subjective assessment; they must make the decision themselves based on complete information, and must give factual and objective reasons for their decision…
Finally, the requirement that the person who hears must decide, does not prevent a decision-maker from seeking advice before making a final decision, however, the record of decision should indicate that, after assessing all relevant factors, the decision-maker came to their own conclusion. Advice received from a manager, from headquarters or from a procedures manual can be used by the decision-maker as guidance in applying the applicable provisions of the Act and Regulations to the facts of the specific application. If a decision-maker makes a decision because of direction by a manager, headquarters or a procedures manual, they restrain, or “fetter,” their discretion.
Canada, Government of Canada, “Procedural Fairness” (Ottawa: Immigration and Citizenship, 2023) online: <www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/procedural-fairness.html>
[80] Jurisprudence of this Court has found that a fettering of discretion may occur when reasons indicate a lack of independent analysis and overt reliance on the conclusions of a previous decision maker (Abusaninah v Canada (Citizenship and Immigration), 2015 FC 234 at paras 42-49) or policy department (Pao v Canada (Citizenship and Immigration), 2019 FC 1397 at paras 8-10, 18, 20). The Court has also implied that a reliance on application processing technology may give rise to fettering of discretion concerns (Khosravi v Canada (Citizenship and Immigration), 2023 FC 805 at para 12; Mehrara v Canada (Citizenship and Immigration), 2024 FC 1554 at paras 67-69).
(3) Application of fairness principles to the Applicant’s case
[81] Applied to the present case, in my view the Applicant was entitled to know the Officer’s concerns as described in the GCMS notes, including the source of the Officer’s concerns, specifically the extrinsic evidence from the Applicant’s family’s bank. The Applicant was also entitled reasons which revealed an independent analytical process for the decision.
[82] The process leading to the determination of the Applicant’s inadmissibility for misrepresentation was therefore unfair for the following reasons:
-
-The PFL failed to disclose the basis of the misrepresentation concern;
-
-The extrinsic evidence from the bank describing its concerns was not disclosed to the Applicant, without justification;
-
-The reasons for refusal reveal a fettering of discretion based on a reliance on extrinsic evidence from the Applicant’s family bank.
[83] When the Applicant’s bank statement was sent to her family’s bank for verification, the bank replied that it was “unable to confirm the authenticity of the affixed stamp”
on the statement. It requested the visa office to inquire about the “source of the statement and the stamp affixed to it.”
This email from the bank describing its concerns constituted extrinsic information, defined by the Respondent as:
● information that is from a source other than the applicant
● information that the applicant does not have access to, or is not aware of, and that is being used in the decision.
Canada, Government of Canada, “Terms and Definitions Related to Permanent Residence” (Ottawa: Immigration and Citizenship, 2025) online: <www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/terms-definitions-related-permanent-residence.html>
[84] The PFL issued by the visa office, after raising generic concerns about subsection 40(1) misrepresentation and subsection 16(1), asked the Applicant to “Please explain how you obtained [the Bank Statement] and why it was submitted in support of this application.”
The extrinsic evidence from the bank expressing its concerns was not disclosed to the Applicant, and the PFL also did not convey the primary concern of the bank, which was the authenticity of the stamp on the bank statement.
[85] The PFL breached the principles of fairness due to its failure to disclose the extrinsic evidence from the Applicant’s bank which gave rise to the concerns and its failure to accurately convey the bank’s concerns and inquiries. As stated above, the purpose of PFLs is to extend fairness to an applicant in the pursuit of truth. However, that goal cannot be achieved when decision makers themselves withhold material information that is relevant to the determination of the truth.
[86] Upon receiving the PFL the Applicant, unaware that her family’s bank was concerned about the stamp on the Bank Statement or that the bank was even the source of the misrepresentation concerns, responded that she obtained the statement from her father, and that she submitted it in support of her study permit application. She submitted the Frimpong Letter to establish the authenticity of the bank account.
[87] The visa office sent the Frimpong Letter to the bank, and the response was that the “statement of account”
is not genuine. The visa office, without further inquiry or analysis, then refused the application for misrepresentation stating “Agymang [
sic] has submitted 2 fraudulent documents, one being in response to PFL. Application refused A40.”
[88] However, the evidence from the bank at best only confirmed that one of the two documents submitted by the Applicant was “fake,”
and it is not clear whether that document was the Bank Statement or the Frimpong Letter. Counsel for the parties were not able to clarify the document in question.
[89] The Officer’s incorrect conclusion on the evidence reveals an unjustified reliance on extrinsic evidence that was misinterpreted without further inquiry — essentially, an outsourcing of the Officer’s decision to an external, third party. This constitutes an unfair fettering of the Officer’s discretion.
B. The decision’s unreasonableness
[90] A fair decision-making process is an important precondition to effective reasonableness review. When fairness is not extended to a party, a reviewing court cannot proceed with confidence in determining reasonableness while wondering about a party’s explanations, actions or evidence that never emerged from under the cloak of unfairness.
[91] Nevertheless, in the present case it is clear that the Officer’s conclusion from the bank’s extrinsic evidence was unreasonable. As mentioned above, the bank’s evidence was that one document was “fake”
and the bank was ambiguous regarding the document in question. The evidentiary record before the Officer was a constraint against which the reasonableness of the decision can be measured (Vavilov, at paras 95, 125-126) and it was unreasonable for the Officer to conclude that the Applicant submitted two fraudulent documents. If the Applicant was provided with the participatory rights she was owed, she may have been able to assist the Officer to draw a reasonable conclusion.
V. Conclusion
[92] An application of the Baker procedural fairness factors to misrepresentation findings requires a high standard of procedural fairness in misrepresentation determinations, regardless of the nature of the matter or application giving rise to misrepresentation concerns. This standard requires full disclosure of the decision maker’s concerns, reflected in their GCMS or file notes, as well as the disclosure of extrinsic evidence giving rise to misrepresentation concerns, with justification provided for any extrinsic evidence that is withheld.
[93] The Officer violated the principles of fairness by withholding both misrepresentation concerns and extrinsic evidence, and by fettering their discretion in the reliance on extrinsic evidence without necessary inquiries or analysis. In addition, the decision is unreasonable given the evidentiary record. The application for judicial review is granted.
Email this Content