Docket: IMM-10942-23
Citation: 2024 FC 1835
Toronto, Ontario, November 18, 2024
PRESENT: The Honourable Mr. Justice A. Grant
BETWEEN: |
ROBIN BEDISSE |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. OVERVIEW
[1] The Applicant applied for a work permit to work as a welder in Canada. An Officer refused his application and found him inadmissible to Canada for misrepresentation, a finding that resulted in a five-year period of inadmissibility. This decision was based on a finding that the Applicant had failed to disclose that he had been removed from the United States on one occasion. The Applicant argues that the Officer misconstrued the evidence and failed to take into account his explanations regarding the enforcement activities. For the reasons that follow, I will grant this application. The Officer’s decision was not responsive to the evidence before them, and lacked both transparency and intelligibility.
II. BACKGROUND
A. Facts
[2] Mr. Bedisse is a citizen of Trinidad and Tobago. He has worked as a welder/fabricator for a number of years in Trinidad, and received an offer of employment from Mancor Canada Inc. to work as a welder. As a result, on March 1, 2023, Mr. Bedisse applied for a work permit. One of the questions contained in the work permit application form is as follows: “Have you ever been refused a visa or permit, denied entry, or ordered to leave Canada or any other country?”
Mr. Bedisse checked “yes”
in response to this question, and in the explanation box below, he stated: “2B) REFUSAL FOR USA VISITOR VISA.”
[3] On May 15, 2023, the Applicant received a “procedural fairness letter”
[PFL] from Immigration, Refugees and Citizenship Canada [IRCC], detailing concerns that he had made a misrepresentation to IRCC – namely, by failing to declare “previous enforcement and expedited removal from the U.S. as well as details of your matter with U.S. authorities.”
[4] On May 19, 2023, the Applicant submitted a reply to the PFL, stating that his failure to disclose more details about his U.S. immigration history was an unintentional mistake. He further stated that he had no intention to hide or misrepresent any information, that he had correctly answered “yes”
in response to the question about his immigration history, that he did not fully understand the “extent of the information”
required in the form, and that his consultant did not ask him to elaborate or explain anything further.
[5] The Applicant then went on to explain that he had been turned away at the airport in the United States because he had borrowed a suitcase from a friend, which contained some of that friend’s documents. He was searched and detained, where he was interrogated, abused, and threatened until he signed whatever documentation they gave him, so that he could return home. The Applicant alleges he viewed that as a denied entry, rather than as enforcement activities and expedited removal, and so only ticked the “yes”
box without providing specific details.
B. Decision under Review
[6] An Officer refused the Applicant’s work permit by letter dated June 30, 2023. The Officer additionally stated that Mr. Bedisse had been found inadmissible to Canada under s.40(1)(a) of the Immigration and Refugee Protection Act [IRPA] for directly or indirectly withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the Act, and will remain inadmissible to Canada for five years, pursuant to s.40(2)(a).
[7] In notes entered into the Global Case Management System [GCMS], which form part of the reasons for decision, the Officer stated that the Applicant had been sent a PFL to address the concerns of undisclosed information in the statutory questions, and that the Applicant’s response to the PFL was not reasonable. The Officer found that it was not believable that Mr. Bedisse would not remember U.S. enforcement activities or not think it was germane to the application. They additionally found that Mr. Bedisse had not provided any information in his explanation that overcame their concerns. As a result, the Officer was satisfied that Mr. Bedisse had failed to provide complete and truthful information, which could have led to an error in the administration of the IRPA, and determined that he was inadmissible to Canada under s.40 and will remain inadmissible for five years.
III. ISSUES and STANDARD OF REVIEW
[8] While the Applicant articulates a somewhat vague argument related to procedural fairness, I find that the only issue that arises on this application is whether the Officer’s decision, and the reasons provided in support of that decision, were reasonable.
[9] On this point, the parties do not dispute that the appropriate standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 16, 23, 25 [Vavilov]. While reasons, in the context of work permit applications, need not be exhaustive, the rationale underpinning the Officer’s conclusions must still satisfy the basic tenets of reasonableness review: intelligibility, transparency, and justification.
[10] I also note that a finding of inadmissibility for misrepresentation has consequences that transcend the mere rejection of the application, most notably the five-year bar referred to above. As such, the justification for such a determination must reflect those stakes: Vavilov, at para 133, Ali v Canada (Citizenship and Immigration), 2021 FC 731 at para 30.
IV. ANALYSIS
A. Legislative Framework
[11] Our immigration system is entirely dependent on the honest and good faith sharing of information by those who wish to come to Canada. Section 16 of the IRPA sets out the expectation that those who apply to come to Canada must be truthful in their applications:
Obligation — answer truthfully
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.
[12] Additionally, section 40 of the IRPA serves as a safeguard for our immigration system by imposing consequences on those who engage in misrepresentation. It provides as follows:
A permanent resident or a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
[13] Underscoring the importance of full and frank disclosure, subsection 40(2) of the IRPA imposes a five-year period of inadmissibility for those found inadmissible for misrepresentation.
B. The Officer’s Decision is Unreasonable
[14] The core facts in this matter are not in dispute. The Applicant indicated in his work permit application that he had previously “been refused a visa, been denied entry, or ordered to leave Canada or any other country.”
As he was required to do, the Applicant provided further, albeit brief, details related to this answer, indicating “refusal for USA visitor visa.”
[15] While this disclosure may well have been insufficient to warrant the granting of a Canadian work permit, there was nothing inaccurate about the above information. Functionally, the Applicant was refused a visitor visa upon his arrival in the United States, as he was not permitted to enter the country. The question on the work permit form – question 2b – makes little mention of enforcement activity other than the phrase “ordered to leave Canada or any other country”
, and the request for further information (question 2d) is silent on the detail required in explaining the answer to question 2b.
[16] Based on the Applicant’s work permit application, it was entirely reasonable for the Officer to seek further information. What was not reasonable, in my view, was the Officer’s response to the further information provided by the Applicant.
[17] As noted above, the Applicant provided a detailed response to the procedural fairness letter, indicating that he had completed his form honestly, that he had no intention to misrepresent any information, and that he did not understand the extent of elaboration required in response to the question about his visa refusal.
[18] The Officer’s consideration of the Applicant’s reply was relatively brief, and mostly boilerplate:
PA’s response is not reasonable. It is not believeable [sic] that PA would not remember US enforcement action and or not think that it was germane to the processing of this application. Based on the application, I am satisfied that the applicant failed to provide complete and truthful information. This could have led to an error in the administration of the act. The PA was provided with an opportunity to address this concern and has failed to provide any information which overcomes said concern.
[19] I find these reasons do not adequately justify the Officer’s conclusion with respect to the Applicant’s inadmissibility. First, the Applicant never indicated that he forgot about the US enforcement action. To the extent that the Officer’s reasons suggest otherwise, it is simply erroneous.
[20] Second, the Officer’s notes provide a conclusion – that the Applicant’s response was not reasonable – but really provide no rationale for that conclusion. This was not a situation where the Applicant concealed or omitted a previous visa denial; on the contrary, he openly disclosed it in his initial application. In other words, the Officer’s concerns were not with the Applicant’s failure to disclose the fact of his US visa refusal, but with the level of detail he provided about it. In these particular circumstances, it was incumbent on the Officer to explain, even briefly, why this amounted to misrepresentation, rather than a simple failure to provide sufficient information in support of the work permit application.
[21] Moreover, in response to the PFL, the Applicant did provide further context related to his US entry refusal. Rather than engage with this context, the Officer simply rejected it on the basis that it was not reasonable. This finding gives the reviewing court no insight into the Officer’s rationale for rejecting the Applicant’s submission, which is precisely the point of reasonableness review.
[22] As the Supreme Court noted in Vavilov, judicial review on the reasonableness standard requires the reviewing court to consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified: Vavilov at para 15. As I cannot discern the Officer’s rationale for both: i) determining that the Applicant had engaged in misrepresentation when he did in fact disclose his US immigration history; and ii) summarily rejecting the Applicant’s PFL response with no justification for the rejection, I conclude that the decision is not reasonable.
V. CONCLUSION
[23] For the above reasons, this application for judicial review is granted. The parties did not propose a question for certification and I agree that none arises.
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