Docket: IMM-4032-24
Citation: 2025 FC 534
Toronto, Ontario, March 21, 2025
PRESENT: Madam Justice Go
BETWEEN: |
SINTIQUE BERNARDA MASSAMBA MUACA |
Applicant |
and |
MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] Sintique Bernarda Massamba Muaca [Applicant], a citizen of Angola, seeks to judicial review a decision dated February 17, 2024, by Immigration, Refugees and Citizenship Canada [IRCC] refusing the Applicant’s work permit application [Decision].
[2] IRCC refused to issue a work permit because it found the Applicant had provided an inauthentic police certificate in support of her work permit application. Accordingly, the Applicant was found inadmissible to Canada for a period of five years due to misrepresentation, under paragraphs 40(1)(a) and 40(2)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[3] The Applicant argues the Decision was unreasonable because it failed to assess whether the innocent mistake exception to misrepresentation applied to the Applicant, and that the reasons for the Decision failed to consider the Applicant’s submissions and evidence in response to the IRCC’s Procedural Fairness Letter [PFL].
[4] For the reasons set out below, I dismiss the application.
II. Issues and Standard of Review
[5] The Applicant raises two issues, which I rephrase as follows:
Did the IRCC officer fail to consider the innocent mistake exception to misrepresentation?
Were the reasons responsive to the facts and evidence before the IRCC officer?
[6] The parties agree that the merits of the Decision are reviewable on a reasonableness standard: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10 and 23.
[7] Reasonableness is a deferential, but robust, standard of review: Vavilov at paras 12-13. The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible, and justified: Vavilov at para 15. For a decision to be unreasonable, the Applicant must establish that the decision contains flaws that are sufficiently central or significant: Vavilov at para 100.
[8] Before addressing the Applicant’s submissions, it is useful to set out some additional factual context leading to the IRCC’s refusal of the Applicant’s work permit.
[9] By letter dated September 19, 2023, IRCC requested the Applicant submit an original police clearance certificate by October 18, 2023, from South Africa, where the Applicant had previously resided for more than six months.
[10] On October 18, 2023, the Applicant submitted to IRCC a South Africa police clearance certificate dated October 11, 2023, with reference number 2023531487 [Certificate].
[11] A visa officer [Visa Officer] issued a PFL dated January 29, 2024, informing the Applicant that the South African Police Services [SAPS] confirmed the Certificate was not issued by the SAPS. As such, the Visa Officer found the Certificate is inauthentic, which constituted a misrepresentation or withholding of a material fact that induced or could have induced errors in the administration of the IRPA, and gave the Applicant 10 days to respond to the Visa Officer’s concerns.
[12] The Applicant submitted a letter dated January 29, 2024 [Response Letter] and materials in response to the PFL. In the Response Letter, the Applicant explained that her sister requested police certificates for the Applicant and herself at a SAPS location in South Africa. The Applicant stated that she received a notification via text message confirming that the request was created in the South African government system on September 28, 2023. The Applicant insisted that she was able to see her inquiry and find her application “in the government system”
with the inquiry number 2023531487. The Applicant explained that her sister was advised by a SAPS staff member that it would take 30 days to process the request, and as her sister had to return to Angola a few days later, the Applicant asked a friend of hers, D.M., to pick up the police certificate for her and he agreed.
[13] The Applicant further explained that she received a call from D.M. after her sister came back to Angola, and D.M. told the Applicant that someone in the SAPS was willing to obtain the police certificate faster than the normal processing time. The Applicant stated she asked D.M. if the process was “legal,”
and D.M. assured her “everything will be good”
and no additional fee was involved. The Applicant said D.M. sent her a copy of the police certificate on October 11, 2023 which she then forwarded to her representative. Finally, on October 27, 2023, the Applicant said she received a text message that her police clearance certificate had been finalized, which confused her as she had already received a police certificate. The Applicant explained that after being notified of the PFL, she called the SAPS and was told that someone came and picked up the police certificate. The Applicant said she did not know who that was and that she was a “victim of the scheme.”
The Applicant also said that D.M. did not respond to her anymore and blocked her and her family members.
[14] The Visa Officer reviewed the Response Letter and recommended refusal of the Applicant’s work permit.
[15] The Visa Officer then referred the matter to an IRCC officer designated to make findings of misrepresentation under section 40 of the IRPA [Designated Officer]. The Designated Officer was satisfied that the Applicant is inadmissible for misrepresentation.
A. Did the Designated Officer fail to consider the innocent mistake exception to misrepresentation?
[16] The Applicant argues the Designated Officer erred by failing to consider the innocent mistake exception when the Response Letter demonstrated the Applicant was unaware the Certificate was inauthentic.
[17] The Applicant submits that IRCC officers can consider, as an exception to misrepresentation, whether a misrepresentation was an innocent mistake (Medel v Canada (Employment and Immigration), [1990] 2 FC 345, 1990 CanLII 12991 (FCA); Baro v Canada (Citizenship and Immigration), 2007 FC 1299 [Baro]; Merio-Borrego v Canada (Public Safety and Emergency Preparedness), 2010 FC 631; Koo v Canada (Citizenship and Immigration), 2008 FC 931).
[18] In particular, the Applicant emphasizes para 15 of Baro, where the Court noted that an exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information.
[19] The Applicant argues it can be a reviewable error for an officer to fail to conduct a meaningful analysis of the innocent mistake exception where there is evidence in support of its application before the officer: Alalami v Canada (Citizenship and Immigration), 2018 FC 328; Berlin v Canada (Citizenship and Immigration), 2011 FC 1117.
[20] The Applicant also argues she meets the two-prong test to establish the innocent mistake exception as set out in Wang v Canada (Citizenship and Immigration), 2018 FC 368 [Wang], where the Court carved out a narrow exception to misrepresentation in “truly extraordinary circumstances where an applicant honestly and reasonably believed that they were not misrepresenting a material fact and knowledge of the misrepresentation was beyond the applicant’s control:”
Wang at para 17, citing Masoud v Canada (Citizenship and Immigration), 2012 FC 422 at paras 33-37; Goudarzi v Canada (Citizenship and Immigration), 2012 FC 425 at para 40.
[21] The Applicant submits the Designated Officer’s finding on the innocent mistake exception was unclear and that the Applicant is left to fill in the blanks and to figure out what the Designated Officer was trying to say. The Applicant also argues the Designated Officer did not make any conclusive finding about the Response Letter.
[22] I disagree.
[23] As a starting point, the parties acknowledge, as do I, that the case law is not entirely consistent on whether the test to establish the innocent mistake exception is two-pronged (an honest and reasonable belief by an applicant they are not making a misrepresentation) or three-pronged (an honest and reasonable belief by an applicant they are not making a misrepresentation, and knowledge of the misrepresentation was beyond an applicant’s control).
[24] However, irrespective of the content of the test for establishing the innocent mistake exception, I disagree with the Applicant’s basic premise that the Designated Officer made no reference or analysis as to whether the Applicant honestly and reasonably believed she was misrepresenting or withholding information, and that the Designated Officer’s findings were unclear.
[25] In the Global Case Management System [GCMS] notes dated February 17, 2024, the Designated Officer provided their reasons for finding the Applicant inadmissible for misrepresentation. The Designated Officer noted the Applicant’s explanation, stating, among other things, that: “Sister had to return to Angola, so Applicant made contact with a friend, [D.M.], to collect the certificates. SA contact advised PA that someone in SAPS is willing to help her to process it quicker – applicant was assured this was legal and did not have to pa [
sic] any additional funds. Applicant recvd copy of said pc on 11OCT23 (the day it was issued) from SA friend.”
[26] The Designated Officer analysed the Applicant’s explanation, but noted that the proper procedure to obtain South African police certificates is available on the IRCC client-facing website and that applicants can confirm the authenticity of the police certificates themselves with the SAPS. The Designated Officer further found that the fact that the Applicant engaged the services of a third party who did not have proper credentials to provide the service requested was the Applicant’s choice and that it damages the Applicant’s overall credibility.
[27] In making these findings, I find the Designated Officer did consider but ultimately rejected the Applicant’s position that she honestly and reasonably believed she was not misrepresenting or withholding information for two reasons: first, the Applicant could have confirmed the authenticity of the certificate herself, and second, it was the Applicant’s choice to rely on an unauthorized third party to help her obtain the inauthentic police certificate.
[28] All these reasons were clearly set out in the Decision. The Court does not have to fill in any gaps. Further, the reasons were responsive to the explanation and evidence the Applicant submitted along with the Response Letter.
[29] While the Designated Officer may not have used the term “innocent mistake exception,”
the Decision demonstrates that the Designated Officer was alive to the Applicant’s plea that she was acting under an honest and reasonable belief that she was not misrepresenting when she submitted the inauthentic police certificate, but for the reasons set out above rejected the Applicant’s explanation.
B. Were the reasons responsive to the facts and evidence before the Designated Officer?
[30] The Applicant submits the Decision is not responsive to the evidence on record, citing Patel v Canada (Citizenship and Immigration), 2020 FC 77 in support. Specifically, the Applicant argues that while the Designated Officer described what constitutes misrepresentation and concluded the Certificate is inauthentic, the Designated Officer’s reasons did not consider the Response Letter and simply concluded the Applicant misrepresented in the application because of the inauthenticity of the Certificate.
[31] The Applicant’s submission has no merit. As I have already set out above, the Designated Officer did consider the Applicant’s explanation but rejected it, with reasons. I find no reviewable error arising from the Designated Officer’s reasons, which are transparent, intelligible, and justifiable in light of the evidence before them.
[32] The application for judicial review is dismissed.
[33] There is no question for certification.
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