Docket: IMM-6207-24
Citation: 2025 FC 429
Vancouver, British Columbia, March 6, 2025
PRESENT: The Honourable Madam Justice Furlanetto
BETWEEN: |
ANKIT VELJIBHAI THUMMAR AND DIPALIBEN ANKIT THUMMAR |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The Principal Applicant, Mr. Ankit Veljibhai Thummar [PA], and by extension his spouse Dipaliben Ankit Thummar, seek judicial review of a February 3, 2024 decision [Decision] of a visa officer [Officer] denying the PA’s application for a work permit under the Temporary Foreign Worker Program [TFWP]. The PA was found inadmissible pursuant to paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for misrepresenting information as to his declared employment history.
[2] For the reasons that follow, the application is granted as I find the Decision unreasonable.
I. Background
[3] The PA asserts that since December 2022, he has worked full-time as a cook in India at Shree Harikrushna Restaurant. He obtained an offer for a position as cook in a restaurant in Manitoba and subsequently received a positive Labour Market Impact Assessment (LMIA).
[4] On July 7, 2023, the PA applied for a work permit under the TFWP and his spouse, Dipaliben Thummar, applied for an open work permit to accompany him.
[5] On October 16, 2023, the PA was sent a Procedural Fairness Letter [PFL] advising of concerns that he had misrepresented his employment as the person who signed his employment reference letter with Shree Harikrushna Restaurant (Mr. Vijaykumar Vadadoriya) had been contacted by phone but had stated that the PA had never worked at the restaurant.
[6] The PA responded to the PFL by submitting an affidavit from Mr. Vadadoriya confirming the PA’s employment with the restaurant and denying that the restaurant had received any employment verification calls. He also provided a further bank statement covering the period between April 1, 2023 and October 26, 2023 detailing his salary deposits and photographs of his monthly salary cheques along with deposit receipts.
[7] The Officer was not satisfied that the PA had addressed their concerns and refused the application, finding the PA inadmissible under subparagraph 40(1)(a) of the IRPA. The Global Case Management System [GCMS] notes provided the following additional reasons:
Response to the PFL consisted of a letter from applicant’s immigration representative, an affidavit from the owner of the restaurant Vijaykumar Vadadoriya, identification documentation for Mr. Vadadoriya, printout of bank transactions, photographs of cheques. Applicant is stating that the restaurant never received any calls regarding the verification. The verification call was to the number identified by the original employment reference letter, the person that took the call was identified to be Mr. Vadadoriya, the signatory of the original employment letter, it was confirmed that no one by applicant’s name was currently or previously employed at the restaurant. As such, I give more weight to the verification call than the documentation submitted. SBI printout can be modified and changed without security features. The photos of cheques covers a limited time period before and after applicant’s application was submitted, it is not conclusive proof that applicant was employed at the restaurant and is not sufficient to overcome the results of the verification call. I am not satisfied that the applicant has addressed our concerns.
Applicant is applying under NOC 63200, where prior employment work experience forms a component of assessing applicant’s eligibility for the WP application thus material to this assessment. By providing a fraudulent employment history, the applicant could have led the Officer to wrongly conclude that they are qualified and met the requirements of the proposed employment in Canada. As such, on balance and after review of the information on file, the documents before me and weighing the factors as outlined by my notes, I am satisfied that the applicant has committed misrepresentation as described in A40(1)(a) of IRPA and that, the misrepresentation could have induced an error in the administration of the Act.
Refused per A40 of this Act. 5-year prohibition imposed by operation of statute.
II. Analysis
[8] The PA asserts that the Officer did not provide an intelligible analysis and ultimately rendered a decision on unreasonable and factually incorrect inferences in opposition to the evidence filed. He asserts that the Officer provided insufficient justification for giving less weight to the sworn affidavit and documentary evidence submitted by the PA over the verification call made by the Officer. The PA also submits that the Officer breached procedural fairness by making veiled credibility findings based on the documentation filed.
[9] In my view, the determinative issue is the reasonableness of the Decision. In evaluating reasonableness, the Court must determine whether the Decision is based on “an internally coherent and rational chain of analysis” and bears the hallmarks of justification, transparency, and intelligibility: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 85-86, 91-95, 99-100.
[10] In this case, I agree with the PA, the Decision fails to meaningfully engage with the contradictory evidence and the reasons provide insufficient justification and lack a rational chain of analysis in respect of the conclusions reached and the Officer’s preferential weighting. The Officer’s GCMS notes focus on the negative factors, instead of giving balanced weight to the positive evidence (Sefidgar v Canada (Minister of Citizenship and Immigration), 2023 FC 1563 at para 14), including the affidavit filed by the employer and the consistency between the full collection of documents provided.
[11] While the Officer raises concern that the PA’s bank statement could be modified and changed as it lacked security features, the Officer has not established that the bank statements were in fact modified. Further, the reasons do not reconcile this assertion with the cheques and deposit receipts provided, each of which are dated and bear banking information that aligns with the monthly deposits in the bank statement. The Officer never considers the evidence holistically.
[12] The Officer states that the cheques from the PA’s employer cover only “a limited time period before and after the applicant’s application was submitted.”
However, this critique is unintelligible. The PA states that he began work at the restaurant in December 2022 and the record shows that he submitted his application on July 7, 2023. The cheques cover the period from January to October 2023. As such, he provided evidence for almost the entire period of his employment. There is no explanation as to why this is insufficient.
[13] Further, these critiques were not balanced against the inherent limitations associated with the phone call conducted by the Officer, which relied exclusively on verbal identification of the recipient, without any other confirmation of the identity of the person on the call.
[14] Although the reference letter submitted by Shree Harikrushna Restaurant invited the Officer to call the number provided to obtain further details of the PA’s employment, in my view, this invitation was not intended to create a heavier weighting to a phone inquiry or to limit the Officer’s evaluation of the cumulative evidence.
[15] The facts here are distinguishable from those in Bhamra v Canada (Citizenship and Immigration), 2014 FC 239 cited by the Respondent, which involved a small business with only a few employees and a more limited response to the PFL that was not supported by additional documentation.
[16] It is difficult in this scenario to consider what more the PA could have provided in response to the PFL. While there is no guarantee when providing a response that it will address the Officer’s concerns, to give the PFL purpose, there was an obligation on the Officer to consider the totality of the evidence provided as a whole: Purohit v Canada (Minister of Citizenship and Immigration), 2024 FC 1598 [Purohit] at paras 19-20; Lin v Canada (Minister of Citizenship and Immigration), 2019 FC 1284 at para 30.
[17] As was emphasized in Purohit, “a finding of misrepresentation carries significant consequences and should not be made in a perfunctory way. Rather, [it] must be made on the strength of clear, compelling, and convincing evidence and by considering the totality of the evidence on a balance of probabilities”
(at para 22).
[18] In this case, the Officer failed to provide sufficient justification as to why the totality of collective evidence provided by the Applicant did not address their concerns. Considering the serious consequences associated with a finding of misrepresentation, the Officer’s reasons lack the requisite intelligibility and justification.
[19] For these reasons, the Decision is unreasonable. The application is accordingly granted and will be referred to a different Officer for redetermination.
[20] There is no question to be certified.
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