[1] This is an application for judicial review of a decision by a visa officer [Officer] of Immigration, Refugees and Citizenship Canada [IRCC] in the Ankara Visa Office, dated April 28, 2023 [Decision]. The Officer refused the Applicant’s work permit application, finding the Applicant inadmissible to Canada for misrepresenting material facts pursuant to s 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. In this case, the application contained a number of false documents, including a fake Labour Market Impact Assessment [LMIA] which was essential to the success of this application.
[2] The Applicant is Iranian. He agreed to pay $11,500 USD to an unregistered consultant with no Canadian credentials whose identity does not appear on documents he filed (known as a ghost consultant) named “Mahdi.”
The Applicant agreed Mahdi was to provide him with a job in Canada, the necessary LMIA, and prepare and submit the work permit application subject to the Applicant’s review.
[3] Mahdi had no Canadian qualifications in this connection.
[4] Mahdi prepared a fake job offer. He prepared a fake LMIA. He submitted material along with a fraudulent work permit application which Mahdi signed for the Applicant. Mahdi did this using an email address he obtained, without anything being reviewed by the Applicant. IRCC sent a procedural fairness email to Mahdi’s email account, noting the LMIA was missing (these documents are numbered for verification purposes). The LMIA was not only “missing”
— it was fake. Mahdi did not reply, and therefore the Officer found the Applicant misrepresented his situation. The Decision renders the Applicant inadmissible to Canada for five years.
[5] Foreign nationals using consultants (whether lawyers, registered Consultants or ghost consultants such as Mahdi) must accept the consequences of their choice of representative, and must take responsibility for the acts and omissions of their chosen representative, including fraud. The only exception is honest and reasonable innocent mistake, which is rarely accepted and not available here.
[6] The purpose of the law against misrepresentation is to preserve the integrity of Canada’s immigration system and discourage fraudsters like Mahdi. The law also encourages applicants to ensure their applications are truthful. To allow this application to succeed would fly in the face of established jurisprudence, and be an affront to the integrity of Canada’s immigration system. It would also, of course, encourage fraudsters like Mahdi to continue their frauds, while at the same time, relieving his clients of their responsibility to ensure their applications are truthful.
[7] In new evidence filed with this Court, the Applicant alleges Mahdi defrauded him and some 500 others. Mahdi appears to have fled to Turkey but was extradited back to Iran, where he may now be in prison awaiting trial, being indicted and prosecuted by the Revolutionary Prosecution Office to be tried before a Revolutionary Court.
[8] Also in new evidence, the Applicant says he found out about the fraud, and tried to withdraw his application. An acquaintance says he helped the Applicant but provides little if any details. The acquaintance’s affidavit is very improperly attached as an exhibit to one of the Applicant’s affidavits – which renders it inadmissible.
[9] Also in his new evidence, the Applicant says he received a confirmation email that his withdrawal was received by IRCC. However he claims he deleted this confirmation and cannot find it. Notably, IRCC has no record of receiving a withdrawal. Notably the acquaintance does not corroborate these details. Moreover, IRCC has no record of sending an email acknowledging the alleged withdrawal. I am not persuaded the Applicant attempted to or withdrew his application.
[10] Therefore, as did my colleague Justice Azmudeh did in Mansooryan v Canada (Citizenship and Immigration), 2024 FC 1718 [Mansooryan], dealing with the same fraudster on similar facts, I will not accept any of the Applicant’s new evidence. To do so would impermissibly invade the Officer’s fact-finding prerogative contrary to teachings of the Federal Court of Appeal.
[11] Therefore this application will be dismissed because it is long established that those seeking to come to Canada must file proper material including, in this case, a real job offer and a real LMIA, and that they must also review, approve, sign and take responsibility for their applications.
[12] As presently advised there are three decisions of this Court dealing with the same type of fraud by the same Mahdi involving other applicants: Mohammadizadeh v Canada (Citizenship and Immigration), 2024 FC 1276 [per Sadrehashemi J; Mohammadizadeh], Falsafi v Canada (Citizenship and Immigration), 2024 FC 1458 [per Go J; Falsafi], and Mansooryan [per Azmudeh J]. While the Court granted judicial review in Mohammadizadeh, it dismissed both Falsafi and Mansooryan.
[13] This Court refused to even grant leave to apply for judicial review: IMM-7674-23, IMM-7727-23, IMM-7729-23, IMM-8054-23, IMM-8174-23, IMM-7773-23, IMM-7990-23, IMM-7624-23 and IMM-14297-23, all involving the same fraudster.
II. Facts
[14] The Applicant is a 48-year-old resident and citizen of Iran. He applied for a work permit under the Temporary Foreign Worker Program.
[15] The Applicant’s Memorandum summarizes his narrative:
2. On or about March 24, 2020, the Applicant was introduced to a company named “Rahgozarsazan Ati Company,” also known as “Visanew”. Mahdi Shavandifar (“Mahdi”), the director of Visanew, played a convincing role in persuading the Applicant of the company’s legitimacy. The Applicant even contacted the Iran Company Registration Office to verify that it was a registered company. Furthermore, Mahdi provided the Applicant with contact information of his previous clients, who claimed to have successfully secured a work permit with Mahdi’s assistance. Additionally, the Applicant was shown documents that he believed demonstrated his corresponding job offer with Capita PLC. Combined, these reasons influenced the Applicant’s ability to trust Mahdi.
3. On April 24, 2020, the Applicant entered into a contract with Mahdi. The contract provided details of the job offer title, name and location of the employer and the annual income. Mahdi quoted a total sum of $11,500 USD to assist the Applicant with securing an LMIA supported job offer and with his work permit application.
4. In April of 2022, Mahdi submitted an employer-specific work permit to Immigration, Refugees and Citizenship Canada (hereinafter referred to as “IRCC”) on Hamidreza’s behalf. Mahdi did not provide the Applicant with an opportunity to review the documentation or an opportunity to sign any forms submitted in support of the work permit application. Mahdi also created a GCKey account using an email address that he created and denied the Applicant access to the account.
5. Approximately eight months after the work permit application was submitted, one of Mahdi’s clients informed the Applicant that their visa application was rejected due to invalid documents. Afterwards, more of Mahdi’s clients began sharing similar experiences. A formal complained was launched second Branch of the General and Revolutionary Courthouse of District Three (Vanak) in Tehran on August 30, 2022. Mahdi then fled to Turkey.
[16] Importantly, the Applicant alleges he attempted to withdraw his application in August 2022, prior to a Procedural Fairness Letter sent to him February 22, 2023, that raised concerns about the LMIA being fraudulent.
[17] The Applicant has submitted a number of affidavits on this point which he asks (unsuccessfully, as will be seen) the Court to accept. His first affidavit states:
6. Regardless, in August of 2022, I submitted a withdrawal request, but I was never informed of the outcome. On May 20, 2023, I managed to access the information on the IRCC account after some of the complainants discovered a way to transfer information from an account created by Mahdi to another account. Upon doing this, I discovered the refusal letter. Attached and marked as Exhibit “A” is a true copy of my work permit refusal letter, dated April 28, 2023. Attached and marked as Exhibit “B” is a true copy of the IRCC portal demonstrating that it was successfully linked, dated May 20, 2023.
[18] The Applicant’s further affidavit states:
2. In my previous Affidavit, I attested that I had attempted to submit a withdrawal of my visa application in August of 2022. Although I did receive confirmation it had been sent via IRCC Web Form, at this time, I unfortunately did not believe this to be an important document and I did not save this correspondence.
3. However, when I submitted my withdrawal, I was in contact with others who had likewise been defrauded by Mahdi Shavandifar. One of these individuals was Mahdi Daniyali. He had previously submitted a withdrawal request for his Canadian visa application prepared by the company Visanew, and, no longer trusting those claiming to be professionals, I asked for his help in preparing my withdrawal application. Mahdi Daniyali kindly agreed to help me with my withdrawal request.
4. Mahdi Daniyali took me through the process, and helped me submit my withdrawal application through the IRCC webform. We later became co-plaintiffs in the complaint against Mahdi Shavandifar.
5. As I no longer have the confirmation email from IRCC Canada, I am instead submitting a sworn affidavit from Mahdi Daniyali, where he confirms he helped me to submit this withdrawal request through the IRCC Web Form. Attached and marked as Exhibit “A” to this Affidavit is the Affidavit of Mahdi Daniyali, dated October 4, 2024.
[19] Finally, a third party affidavit attached as Exhibit A to the Applicant’s further affidavit states:
6. I was subsequently contacted by the Applicant, Mr. Hamidreza Dini, for help in withdrawing his application. He had likewise been defrauded by Mahdi, and no longer trusted those representing themselves as professionals as Mahdi had. He knew that I had sent a withdrawal of my application, and I readily agreed to help him with his withdrawal request.
7. Together, the Applicant and I put together his withdrawal request. I confirm that I helped him submit his request via the IRCC Web Form in August of 2022.
…
9. The Applicant, like myself, was a victim of the fraud of Mahdi. I understand that the confirmation email sent to the Applicant confirming his withdrawal request had been received by IRCC has unfortunately been lost, and I make this Affidavit to assure this Court that the Applicant was proactive in his attempt to withdraw his application. In addition, I would like to state that, with my help, he did submit this withdrawal request via the IRCC webform.
III. Decision under review
[20] As noted above, the Officer found the Applicant inadmissible to Canada for misrepresentation under s 40(1)(a) of IRPA, and issued him a 5-year ban from Canada. The Decision states:
… I am refusing your application on the following grounds:
You have been found inadmissible to Canada in accordance with paragraph 40(1)(a) of the Immigration and Refugee Protection Act (IRPA) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. In accordance with paragraph A40(2)(a), you will remain inadmissible to Canada for a period of five years from the date of this letter or from the date a previous removal order was enforced.
[21] The Global Case Management System [GCMS] notes, which form part of the Officer’s reasons, further state:
The applicant has not responded to the PFL. As a result, the concerns on file remain unaddressed.
After reviewing the information on file as well as all the applicant's submissions, I'm satisfied that in the course of this application the applicant has misrepresented or withheld material facts related to a relevant matter that could have induced an error in the administration of IRPA. As a result, I am satisfied they are inadmissible to Canada under A40. Application Refused.
I am not satisfied that the applicant meets the requirements of R200 in order to be issued a work permit. Application refused.
IV. Issues
[22] The Applicant raises the following issues:
What is the applicable standard of review in this case?
Whether the Applicant suffered a breach of procedural fairness?
Whether the decision is unreasonable?
[23] The primary issues are whether the Applicant was denied procedural fairness and whether the Decision is reasonable. Also at issue is the admissibility of the Applicant’s new evidence.
V. Standard of review
[24] The parties agree, and I concur, the standard of review for the Officer’s Decision in this case is reasonableness. On the issue of procedural fairness, the Applicant submits the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond. The Respondent submits the standard is correctness.
A. Reasonableness
[25] With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued at the same time as the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 [Vavilov], the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one 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). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[26] In the words of the Supreme Court of Canada in Vavilov, a reviewing court must be satisfied the decision-maker’s reasoning “adds up”
:
[104] Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.
[105] In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.
[106] It is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case. However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely: the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached.
[Emphasis added]
[27] The Supreme Court of Canada in Vavilov at paragraph 86 states, “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision-maker to those to whom the decision applies.”
Vavilov provides further guidance that a reviewing court decide based on the record before them:
[126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.
[Emphasis added]
[28] Vavilov makes it abundantly clear the role of this Court is not to reweigh and reassess the evidence unless there are “exceptional circumstances.”
The Supreme Court of Canada instructs:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
[Emphasis added]
[29] The Federal Court of Appeal held in Doyle v Canada (Attorney General), 2021 FCA 237 that the role of this Court is not to reweigh and reassess the evidence unless there is a fundamental error:
[3] In doing that, the Federal Court was quite right. Under this legislative scheme, the administrative decision-maker, here the Director, alone considers the evidence, decides on issues of admissibility and weight, assesses whether inferences should be drawn, and makes a decision. In conducting reasonableness review of the Director’s decision, the reviewing court, here the Federal Court, can interfere only where the Director has committed fundamental errors in fact-finding that undermine the acceptability of the decision. Reweighing and second-guessing the evidence is no part of its role. Sticking to its role, the Federal Court did not find any fundamental errors.
[4] On appeal, in essence, the appellant invites us in his written and oral submissions to reweigh and second-guess the evidence. We decline the invitation.
[30] Moreover, Vavilov requires the reviewing court to assess whether the decision subject to judicial review meaningfully grapples with the key issues:
[127] The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.
[128] Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker, at para. 39.
[31] As the Federal Court of Appeal recently held in Canadian National Railway Company v Halton (Regional Municipality), 2024 FCA 160, reviewing courts must seek to understand the challenged decision to determine if it is rational and logical as a whole, and not seize on inconsequential errors or omissions:
[43] CN and the Attorney General of Canada submit, and I agree, that in reviewing the decisions, the Federal Court took an unduly formalistic approach in searching for an enumerated list of six SAEEs [significant adverse environmental effects]: two “direct” (or project-specific) and four cumulative. The Federal Court, satisfied that the Minister’s Decision did not refer to or discuss a “direct” SAEE on human health as it relates to air quality, determined that there was “no reason” to review the decision in detail: FC Reasons at para. 97. This was an error.
[44] Vavilov tells us that decisions being reviewed for reasonableness must be read in light of the record, holistically, and contextually: paras. 96-97. A reviewing court must give the reasons “respectful attention”, seek to understand the challenged decision, and determine if, as a whole, it is rational and logical—not seize on inconsequential errors or omissions: Vavilov at paras. 84-85 and 99-100.
[45] On discovery of a missing reference to a “direct” [significant adverse environmental effect, SAEE] in a bullet point in the Summary portion of the Minister’s Decision, the Federal Court ought to have considered whether the Minister nonetheless took into account the substance of the review panel’s findings on the adverse effects on human health related to air quality, both project-specific and cumulative. On reviewing the Minister’s Decision as a whole, in light of the review panel’s report, I have determined that the Minister did just that.
[Emphasis added]
B. Procedural fairness
[32] The Applicant submits that the focus for procedural fairness is whether the process is fair. Although frequently referred to as a correctness standard, the Federal Court of Appeal has conclusively determined, and I agree, that on procedural fairness “the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond”
: see Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paragraph 55-6 [per Rennie JA]):
[55] Attempting to shoehorn the question of procedural fairness into a standard of review analysis is also, at the end of the day, an unprofitable exercise. Procedural review and substantive review serve different objectives in administrative law. While there is overlap, the former focuses on the nature of the rights involved and the consequences for affected parties, while the latter focuses on the relationship between the court and the administrative decision maker. Further, certain procedural matters do not lend themselves to a standard of review analysis at all, such as when bias is alleged. As Suresh demonstrates, the distinction between substantive and procedural review and the ability of a court to tailor remedies appropriate to each is a useful tool in the judicial toolbox, and, in my view, there are no compelling reasons why it should be jettisoned.
[56] No matter how much deference is accorded administrative tribunals in the exercise of their discretion to make procedural choices, the ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond. It would be problematic if an a priori decision as to whether the standard of review is correctness or reasonableness generated a different answer to what is a singular question that is fundamental to the concept of justice―was the party given a right to be heard and the opportunity to know the case against them? Procedural fairness is not sacrificed on the altar of deference.
[Emphasis added]
[33] I will also follow a more recent Federal Court of Appeal judgment relying on “the long line of jurisprudence, both from the Supreme Court and”
the Federal Court of Appeal itself, that “the standard of review with respect to procedural fairness remains correctness”
: see Canadian Association of Refugee Lawyers v Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at paragraph 35 per de Montigny JA (as he then was). Notably, to the same effect is the judgment of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, per Binnie J at paragraph 43:
[43] Judicial intervention is also authorized where a federal board, commission or other tribunal
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
No standard of review is specified. On the other hand, Dunsmuir says that procedural issues (subject to competent legislative override) are to be determined by a court on the basis of a correctness standard of review. Relief in such cases is governed by common law principles, including the withholding of relief when the procedural error is purely technical and occasions no substantial wrong or miscarriage of justice (Pal, at para. 9). This is confirmed by s. 18.1(5). It may have been thought that the Federal Court, being a statutory court, required a specific grant of power to “make an order validating the decision” (s. 18.1(5)) where appropriate.
[34] In Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 50, the Supreme Court of Canada also establishes what is required on the correctness standard of review:
[50] When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
VI. Relevant provisions
[35] Most relevant to this application is ss 40(1) and 40(2)(a) of IRPA, which state:
Misrepresentation
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Fausses déclarations
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40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation
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40 (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants :
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(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;
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a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans l’application de la présente loi;
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…
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…
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Application
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Application
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(2) The following provisions govern subsection (1):
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(2) Les dispositions suivantes s’appliquent au paragraphe (1):
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(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced…
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a) l’interdiction de territoire court pour les cinq ans suivant la décision la constatant en dernier ressort, si le résident permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la mesure de renvoi…
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VII. Analysis
A. Preliminary issue: new evidence is not admissible
[36] In support of his argument, the Applicant filed a sworn Affidavit and Further Affidavit, including a number of exhibits, totalling 390 pages. As a preliminary issue, the Applicant asks these be admitted. This request is denied for the following reasons.
[37] The first Affidavit concerns the Applicant’s interactions with and criminal case against Mahdi. The Affidavit totals 325 pages.
[38] Meanwhile, the Further Affidavit concerns the Applicant’s alleged attempt to withdraw his visa application in August 2022. The Applicant attests that “[a]lthough I did receive confirmation it had been sent via IRCC Web Form, at this time, I unfortunately did not believe this to be an important document and I did not save this correspondence.”
The Further Affidavit includes as Exhibit A an Affidavit of his acquaintance, Mahdi Daniyali, who attests he assisted the Applicant in submitting his work permit application. The Further Affidavit totals 65 pages. Notably it does not corroborate the Applicant’s claim he received and deleted IRCC’s acknowledgement of receipt.
[39] The Applicant correctly “acknowledges that generally, evidence that was not before the decision-maker is not admissible before the reviewing court,”
but emphasizes there is a recognized exception where evidence is relevant to an “issue of natural justice, procedural fairness, improper purpose or fraud”
that could not have been placed before the administrative decision-maker and does not interfere with the role of the administrative decision-maker as merits-decider: Bernard v Canada (Revenue Agency), 2015 FCA 263 [Bernard], citing Keeprite Workers’ Independent Union v Keeprite Products Ltd (1980), 1980 CanLII 1877 (ONCA), 29 OR (2d) 513 (CA); Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 [Access Copyright]. The Applicant also contends this additional evidence can be categorized as general background information to assist the Court in understanding the issues relevant to the judicial review; namely, the context of the mass fraud and complaint against the Consultant.
[40] The Applicant submits the new evidence “does not interfere with the role of the administrative decision-maker as a merit-decider,”
per Bernard, because it only relates to the issue of procedural fairness and mass fraud on the part of the Consultant.
[41] In my view, none of this new evidence is admissible under Access Copyright and Bernard. This was the finding of this Court per Justice Azmudeh in Mansooryan, which held on very similar facts that this evidence is inadmissible because it was not before the Officer when they made their decision and does not fit within the exceptions for admission of new evidence per Access Copyright at paragraph 20. I add that Mohammadizadeh and Falsafi held similarly. The Respondent submits the Court should make the same finding in this case.
[42] It will.
[43] The Applicant argues this case is distinguishable from Mansooryan because “the Applicant in this case does not provide a letter from the assisting party, in that case a lawyer, but a sworn affidavit. It is trite law that a statutory declaration carries with it a presumption of truthfulness that is not expected of a letter, given that it is a sworn statement, and the Respondent had a fair opportunity to cross-examine this affidavit.”
I also note that in Falsafi, the applicant had responded to the procedural fairness letter and the impugned new evidence provided new explanations not before the officer.
[44] The difficulty with these arguments is that the Applicant has failed to persuade the Court that he submitted a request to withdraw his application.
[45] While he has filed an affidavit of his own to that effect, and one of a acquaintance to corroborate he tried to withdraw his application, the acquaintance’s affidavit is not filed as a stand alone affidavit, but instead is improperly attached as an exhibit to one of the Applicant’s own affidavits. That is unacceptable, because it offends Rule 80(1) of the Federal Courts Rules, SOR/98-106. In addition, filing in this improper manner makes it hearsay. Moreover attaching an affidavit to that of another effectively prevents the Respondent from cross-examining the acquaintance under Rule 84(1). I give the acquaintance ’s “affidavit”
(if it is that at all) no weight no weight at all; it is as if it was never filed.
[46] While I will consider the matter further, this inadmissibility is determinative of this case, when coupled with the insufficient evidence of the Applicant himself compared with that of IRCC. The Applicant says he e-filed to withdraw, and had a receipt. But he claims he did not think the receipt was necessary and therefore deleted it. It seems to me the same negligence was at work if, as, and when he deleted the receipt, as when Mahdi faked a job offer and LMIA, and sent in both without the Applicant exercising his contractual right and legal duty to approve it.
[47] On the other side, IRCC has no record of the alleged withdrawal.
[48] Moreover, IRCC has no record of sending a receipt.
[49] Notably also his acquaintance does not corroborate a received, deleted or missing receipt.
[50] In weighing this matter, I am not persuaded the Applicant attempted to or did file the withdrawal because, among other things, I prefer the evidence of IRCC over the uncorroborated evidence of the Applicant.
[51] In addition, in Bernard, the Federal Court of Appeal per Stratas JA notes new evidence must not invade the administrative decision-maker’s role as fact-finder and merits-decider:
[28] The list of exceptions is not closed. In some cases, reviewing courts have received affidavit evidence that facilitates their reviewing task and does not invade the administrative decision-maker’s role as fact-finder and merits-decider: Hartwig v. Saskatchewan (Commissioner of Inquiry), 2007 SKCA 74, 284 D.L.R. (4th) 268 at paragraph 24. For example, in one case the applicant wished to submit that the administrative decision-maker’s decision was unreasonable because it wrongly construed certain submissions made by counsel as admissions. But counsel’s submissions to the administrative decision-maker were not in the record filed with reviewing court. The reviewing court admitted evidence of counsel’s submissions so that it could assess whether the decision was unreasonable: Ontario Shores Centre for Mental Health v. O.P.S.E.U., 2011 ONSC 358. In another case, a reviewing court admitted a partial transcript of proceedings before an administrative decision-maker. The transcript was prepared by one of the parties, not by the administrative decision-maker. In the circumstances, the reviewing court was satisfied that the partial transcript was reliable, did not work unfairness or prejudice, and was necessary to allow it to review the administrative decision: SELI Canada Inc. v. Construction and Specialized Workers' Union, Local 1611, 2011 BCCA 353, 336 D.L.R. (4th) 577.
[Emphasis added]
[52] On these bases, even if I were to admit this after the fact material (which I do not) it would not make a difference because I conclude that admitting the impugned evidence would “invade the administrative decision-maker’s role as fact-finder and merits-decider.”
With respect, the new evidence as it relates to the consultant Mahdi engages substantively with the merits of the decision: Mansooryan at paragraph 20; see also Mohammadizadeh at paragraphs 3-4.
B. No breach of procedural fairness
[53] The Applicant submits the Applicant suffered a breach of procedural fairness due to the acts and omissions of Mahdi, which resulted in a miscarriage of justice. The Applicant relies on Satkunanathan v Canada (Citizenship and Immigration), 2020 FC 470, in which this Court per Justice Pamel states:
[33] It is established that ineffective or incompetent counsel may be sufficient grounds for a breach of natural justice (Shirwa v Canada (Minister of Employment and Immigration), 1993 CanLII 17477 (FC), [1994] 2 FC 51, 1993 CanLII 3026 (FCA) at pp 60-61 [Shirwa]; Osagie v Canada (Minister of Citizenship and Immigration), 2004 FC 1368 at paras 24-27; Memari v Canada (Citizenship and Immigration), 2010 FC 1196 at para 64 [Memari]; Rodrigues v Canada (Minister of Citizenship and Immigration), 2008 FC 77, [2008] 4 FCR 474 at para 39 [Rodrigues]; Mcintyre v Canada (Citizenship and Immigration), 2016 FC 1351 at paras 34, 39-40 [Mcintyre]; Kavihuha v Canada (Citizenship and Immigration), 2015 FC 328 at paras 27-28; El Kaissi v Canada (Citizenship and Immigration), 2011 FC 1234 at para 33).
[54] I do not find this case helpful. It focuses on counsel incompetence. At issue here is whether Mahdi may even remotely be considered “counsel”
: he cannot. While some jurisprudence suggests allegations of incompetent counsel apply to lawyers and immigration consultants (see e.g. Afolayan v Canada (Citizenship and Immigration), 2022 FC 1625), nothing in the record suggests (and I would be surprised if) Mahdi was authorized as a consultant under the Consolidated Practice Guidelines for Citizenship, Immigration, and Refugee Protection Proceedings, dated June 24, 2022, and last amended October 31, 2023.
[55] Overall, I accept settled law that all applicants under IRPA are responsible for the contents of their applications whether they file it or it is filed by others including fraudsters like Mahdi. Foreign national applicants have the onus to review it and ensure their submissions are complete and accurate. If they chose to rely on a consultant, and are not given the opportunity to review the application, it is contrary to the applicant’s duty of candour to permit the applicant to rely on their failure to review their own application. It was their responsibility to ensure their application was truthful and complete — they were negligent in performing this duty. See the law as set out by Justice Tremblay-Lamer J in Goudarzi v Canada (Citizenship and Immigration), 2012 FC 425 at paragraphs 41-43:
[41] The applicants allege that they had no knowledge of the misrepresentation and wish to exonerate themselves by blaming their immigration consultant. Indeed, they claim to have not even seen the submitted copy of their application forms. As a result, they submit that the fraudulence of their immigration consultant should serve as a defence to the application of section 40(1)(a).
[42] In response to this submission, I find the comments of Justice Mosley in Haque v Canada (Minister of Citizenship and Immigration), 2011 FC 315 to be instructive:
[16] The applicant was in Bangladesh at the time the updated application was submitted. He admitted during the phone conversation on May 26th that he “could have signed the blank form for the consultant”. The new form had further discrepancies. The applicant apparently chose to rely on the consultant to submit the required information without personally verifying that it was accurate.
The applicants in this case chose to rely on their consultant. The principal applicant claims that she was not given the opportunity to review her application. It would be contrary to the applicant’s duty of candour to permit the applicant to rely now on her failure to review her own application. It was her responsibility to ensure her application was truthful and complete—she was negligent in performing this duty.
[43] Furthermore, in order for the applicants to rely on a ‘defence’ to the finding of misrepresentation, that defence must be grounded either in statute or common law. In my view, there is no such defence under the Act: the wording of section 40(1)(a) is broad enough to encompass misrepresentations made by another party, of which the applicant was unaware: Wang, above at paragraphs 55-56. Furthermore, in Haque v Canada (Minister of Citizenship and Immigration), 2011 FC 315, the Court held that the fact that an immigration consultant was to blame for the misrepresentation was no defence. As already discussed, the applicants cannot avail themselves of the exception for an innocent mistake.
C. Decision is reasonable?
[56] The Applicant submits the Decision is unreasonable for failing to consider the honest and reasonable innocent mistake exception, as summarized in Munoz Gallardo v Canada (Citizenship and Immigration), 2022 FC 1304 at paragraph 19:
[19] In extraordinary circumstances, a narrow exception to a misrepresentation finding under paragraph 40(1)(a) may apply where an applicant is able to show that they honestly and reasonably believed that they were not withholding material information: Kazzi at para 38; Goburdhun v Canada (Citizenship and Immigration), 2013 FC 971 [Goburdhun] at para 31; Medel v Canada (Minister of Employment and Immigration), [1990] 2 FC 345, [1990] FCJ No 318 (QL) (FCA). In Alkhaldi at paragraph 19, this was described as involving a subjective test, where the decision-maker asks whether the person honestly believed that he was not making a misrepresentation; and an objective test, where the decision-maker asks whether it was reasonable on the facts that the person believed that he was not making a misrepresentation.
[57] However, in my respectful view, the Officer was under no obligation to consider the honest and reasonable innocent mistake exception given the Applicant did not respond to the Procedural Fairness Letter, did not review or sign his application, and has not established he withdrew or attempted to withdraw his application before or after the Procedural Fairness Letter: Mansooryan at paragraph 31. And in any event, I am not persuaded those who are negligent as the Applicant is in this case, may claim under this narrow and rare exception which insists on reasonable and honest and innocent mistake.
[58] The Applicant further submits the Decision fails to meaningfully analyze whether the misrepresentation was “material.”
Counsel admits the absence of the LMIA is material but insists that it must be specifically addressed in the decision finding misrepresentation. Materiality was a theme at the hearing. I agree there is no consideration of materiality in the Decision but that is far from the end of the matter. It is well known that tribunal reasons must be read in context with the GCMS notes, which clearly identify the issue as the missing LMIA including its registration number. This was provided to the Applicant in the PFL. No one disputes the LMIA is missing, and no one doubts the LMIA is fake. Likewise no one disputes a LMIA is essential to the success of the application in question. Regardless of what staff guidelines say, there is no merit in the Applicant’s attack on the Decision’s silence on materiality. Submissions in this respect are simply a baseless treasure hunt for immaterial error (Vavilov at para 102).
VIII. Conclusions
[59] Given the above this application must be dismissed.
IX. Certified question
[60] Neither party proposes a question for certification and I agree none arises.
X. Costs
[61] There are no costs in this case.
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