Docket: IMM-4337-23
Citation: 2025 FC 885
Ottawa, Ontario, May 14, 2025
PRESENT: Mr. Justice Pentney
|
BETWEEN: |
|
SURIN CHUDCHAMNAN
|
|
Applicant |
|
and |
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
|
Respondent |
JUDGMENT AND REASONS
[1] The Applicant, Surin Chudchamnan, seeks judicial review of the decision refusing his application for a work permit and finding him inadmissible to Canada for misrepresentation. He had applied to work at a Thai restaurant in Canada, but his application was refused and he was found inadmissible because the Officer did not believe his work history.
[2] The Applicant argues he was denied procedural fairness, and the decision is unreasonable on its merits.
[3] For the reasons set out below, the application for judicial review will be dismissed.
I. Background
[4] The Applicant is a citizen of Thailand. He was seeking entry to Canada to work at a Thai restaurant in Toronto (“Pai Toronto”
). In his application for a work permit, the Applicant reported that he had relevant work experience in Thailand: as a chef at Pai River Corner Resort & Restaurant (“Pai River Corner”
) from May 2015 to December 2018; as a cook at Club One Seven Chiang Mai Co., Ltd. (“Club One Seven”
) from August 2019 to February 2021; and at Kin Tum Yum Yang restaurant since October 2021. He submitted a certificate of employment attesting to his work at Pai River Corner, an employment certificate and affidavit stating he had been employed at Club One Seven, and an employment letter stating he had been employed at Kin Tum Yum Yang since October 2021.
[5] The Officer examining the application contacted Pai River Corner to verify the Applicant’s employment but was told by the manager who allegedly signed the certificate of employment that she did not know him and that the Applicant had never worked for the restaurant. The manager said she never signed certificates of employment for any employee. The manager also contacted other employees at the restaurant, who indicated that the Applicant had wanted to work abroad and so he asked to work at the restaurant as an unpaid intern. The Officer also spoke with a long-time cook at the restaurant, who said she “barely knew”
the Applicant and assumed he did general tasks at the restaurant.
[6] As for the Applicant’s second workplace, Club One Seven, the Officer spoke with a manager and employee; both barely knew the Applicant (the employee said they only knew the Applicant by his nickname) but they thought he had worked as a cook. In relation to the Applicant’s current workplace, the Officer was unable to locate Kin Tum Yum Yang restaurant through extensive online searches including social media.
[7] As a result of all of this information, the Officer had serious concerns that the Applicant had misrepresented his work history. The Officer sent a Procedural Fairness Letter (PFL) to the Applicant, setting out the Officer’s concerns about his work history:
Specifically, I have concerns that you have misrepresented the following material facts:
I performed a verification of your purported employment at Pai River Corner Resort & Restaurant in Mae Hong Son, Thailand. The signatory on your certificate of employment stated: 1) she does not know you; 2) you were never employed at the restaurant; and 3) that she never signed the letter you submitted in your application.
I attempted to verify your current employment at Kin Tum Yum Yang restaurant in Chiang Mai, Thailand. After an extensive search through multiple channels, including social media feeds, I was unable to find any record of this restaurant’s existence.
It appears you have provided false or misleading information in support of your application to appear qualified for a visa to work in Canada.
[8] The Applicant responded to the PFL, providing a further letter attesting to his employment at Pai River Corner, signed by the same person whose signature appeared on the original employment letter. The second letter stated that the manager “did not recognize [the Applicant’s] official birth name, because we always referred to him by his Thai nickname…”
and that she did not recall that he had worked there because it had been so many years ago. The Applicant’s response indicated that the manager had stated that she would be available to talk to an officer if that was necessary.
[9] As for the Officer’s inability to locate the Kin Tum Yum Yang restaurant through online searches, the Applicant stated that the restaurant changed its name in May 2022 to Laim Thong Café, and that its only online presence was a Facebook page. The Applicant provided a letter from the owner confirming his employment at that restaurant as well as photographs of him working there. The response indicated that the owner of the restaurant was also willing to speak to an officer to address any outstanding concerns.
[10] The Applicant denied making any misrepresentation, and said he had made a complete, honest and truthful disclosure regarding his work history.
[11] The Officer was not satisfied with the Applicant’s response to the PFL, based on the following key findings:
-
oThe manager’s signatures on the two letters from Pai River Corner restaurant were not the same;
-
oit is unlikely that a manager who supervised the Applicant for two years would not know his legal name;
-
oduring the first verification, the manager had said she never signed employment certificates, yet the Applicant had provided two of them purportedly signed by her;
-
othe long-standing restaurant cook also confirmed that the Applicant had never worked there.
-
oIt was “irregular”
that the Applicant would not mention the restaurant’s new name despite swearing his affidavit in support of his work permit application nine months after the name change;
-
oIt was “convenient”
that the social media post used to confirm the Applicant’s employment at the restaurant was made 20 minutes before the screen grab was taken;
-
oIt was unusual that the Applicant would suddenly have employment letters and photos attesting to his employment at the restaurant, but did not submit them with his original application, relying instead on his affidavit.
[12] Based on these findings, the Officer concluded that the Applicant had made a material misrepresentation on his application regarding his work history, which was a key element in the work permit application. The Officer therefore refused to approve his work permit and found the Applicant to be inadmissible for misrepresentation. The Applicant’s file was then reviewed by a Migration Program Manager, who concurred in the Officer’s findings. The Applicant’s application for a work permit was refused, and he was found inadmissible for misrepresentation pursuant to paragraph 40(2)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
[13] The Applicant seeks judicial review of this decision.
II. Issues and Standard of Review
[14] There are two issues in this case:
-
Was the Applicant denied procedural fairness because the PFL did not provide him with sufficient details about the Officer’s concerns?
-
Is the decision unreasonable because the Officer ignored material evidence and provided inadequate reasons for the refusal?
[15] The first question is to be assessed on a standard that is akin to “correctness,”
although technically no standard of review is applied at all: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [Canadian Pacific] at para 55; see also Heiltsuk Horizon Maritime Services Ltd v Atlantic Towing Limited, 2021 FCA 26 at para 107. Under this approach, a reviewing Court is required to assess whether the decision-making process was fair in all of the circumstances, “with a sharp focus on the nature of the substantive rights involved and the consequences for an individual…”
(Canadian Pacific at para 54). The ultimate question is “whether the applicant knew the case to meet and had a full and fair chance to respond”
(Canadian Pacific at para 56).
[16] The second question is assessed under the framework for reasonableness review set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], and confirmed in Mason v Canada (Citizenship and Immigration), 2023 SCC 21 [Mason].
[17] In summary, under the Vavilov framework, a reviewing court is to review the reasons given by the administrative decision maker and determine whether the decision is based on an internally coherent chain of reasoning and is justified in light of the relevant legal and factual constraints (Vavilov at para 85; Mason at para 8). The onus is on the Applicants to demonstrate that “any shortcomings or flaws … are sufficiently central or significant to render the decision unreasonable”
(Vavilov at para 100). Absent exceptional circumstances, a reviewing court will not interfere with factual findings; it is not the role of a reviewing court to reweigh or reassess the evidence (Vavilov at para 125).
III. Analysis
A. There was no denial of procedural fairness
[18] The Applicant argues that he was denied procedural fairness because the PFL did not provide him with sufficient details to allow him to respond to the Officer’s concerns.
[19] The touchstone for assessing procedural fairness remains the decision of the Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC) [Baker]. As it applies to this case, two key points emerge from this decision. First, the Applicant was owed a high duty of procedural fairness because he faced serious consequences if he was found to have made a material misrepresentation: Bayramov v Canada (Citizenship and Immigration), 2019 FC 256 at para 15; Likhi v Canada (Citizenship and Immigration), 2020 FC 171 at para 27. In particular, the higher duty arises because a finding of misrepresentation would bar the Applicant from re-applying for authorization to come to Canada for five years.
[20] Second, Baker emphasizes the importance of ensuring that a party affected by a decision knows “the case to meet”
and has a full and fair opportunity to present their case. That is why the Respondent issues a PFL in some cases. In assessing the adequacy of the PFL, the core question is whether the Applicant had a meaningful opportunity to participate in the process.
[21] That means the PFL must provide sufficient details about the Officer’s concerns to allow the Applicant a full and fair opportunity to respond to them. As stated by Justice LeBlanc (then on this Court) in Bui v Canada (Citizenship and Immigration), 2019 FC 440 at para 29, a PFL “…must contain enough detail to enable the applicant to know the case to meet, meaning that the applicant is provided with a reasonable understanding of why the officer is inclined to deny the application. In other words, an applicant should not be ‘kept in the dark’ about the information upon which an officer may render a decision… (citations omitted).”
[22] In Kaur v Canada (Citizenship and Immigration), 2020 FC 809 [Kaur], Justice Norris set out the following approach to this question:
[42] It follows from the principles cited above that, when a procedural fairness letter has been sent, a functional approach should be taken to assessing its adequacy. The purpose of a procedural fairness letter “is to provide enough information to an applicant that a meaningful answer can be supplied” (Ntaisi at para 6). Thus, the question is: Does the letter inform the affected party of the decision maker’s concerns? To serve this purpose, the letter must state more than general concerns. It must state the decision maker’s concerns with sufficient clarity and particularity so that the affected party has a meaningful opportunity to address them. See AB v Canada (Citizenship and Immigration), 2013 FC 134 at paras 53-54, and Toki at para 25.
[23] The Applicant submits that he was denied procedural fairness because the PFL did not set out sufficient details. The analysis of this argument begins with the PFL itself, which was issued after the Officer took steps to verify the Applicant’s employment history set out in his application. The letter stated the Officer’s concerns as follows:
Specifically, I have concerns that you have misrepresented the following material facts:
I performed a verification of your purported employment at Pai River Corner Resort & Restaurant in Mae Hong Son, Thailand. The signatory on your certificate of employment stated: 1) she does not know you; 2) you were never employed at the restaurant; and 3) that she never signed the letter you submitted in your application.
I attempted to verify your current employment at Kin Tum Yum Yang restaurant in Chiang Mai, Thailand. After an extensive search through multiple channels, including social media feeds, I was unable to find any record of this restaurant’s existence.
It appears you have provided false or misleading information in support of your application to appear qualified for a visa to work in Canada.
[24] The Applicant argues that the letter was insufficient for several reasons: it did not indicate that the Officer had interviewed a manager and a cook at Pai River Corner Restaurant; it did not state that the manager had said she never provides signed employment certificates for employees; and it did not advise him that the cook had verified that the Applicant never worked at that restaurant. The Applicant submits that this case is similar to the facts in Chawla v Canada (Citizenship and Immigration), 2014 FC 434 [Chawla], where a PFL was found to be inadequate because it failed to provide the claimant with sufficient details about the information the officer had gathered during a phone interview. In the absence of this information, the claimant in that case was not able to dispute the facts on which the decision was based. The Applicant says the same thing happened here, and the PFL is therefore inadequate.
[25] I am not persuaded by these arguments. First, the procedural fairness letter provided to the Applicant set out much more detail than the one in Chawla. In that case, the PFL merely stated: “[o]ur investigation staff conducted a verification on this restaurant in January 2012: Based on the information gathered during the investigation it was reported to us that you have never worked at this restaurant”
(Chawla at para 5). In contrast, the PFL sent to the Applicant in the present case set out the basis for the Officer’s concerns in some detail, although it did not provide all of the information that had been gathered during the verification process. An additional difference is that in Chawla the applicant had provided an affidavit refuting the information that had been gathered but not disclosed. In this case, while the Applicant swears he was honest and forthcoming, he did not directly dispute the manager’s statements, nor did he elaborate on the social media screen captures from the restaurant at which he currently works or that restaurant’s social media presence.
[26] In other cases, the Court has found that a vague or unclear PFL can give rise to procedural unfairness: see, for example, Kaur at para 44. In contrast, a PFL that expresses the essential concerns of the officer have been found to be sufficient, even if it did not lay out all of the information that gave rise to the concern: see, for example, Bui at para 30.
[27] The key question on this point is whether the letter provided the Applicant with sufficient details to enable him to know “the case to meet”
; that is, did it provide enough information to allow the opportunity for the Applicant to meaningfully participate in the process? One important way of assessing this is to examine the ultimate decision that was reached: if it was based in large part on information the Applicant was not aware of, that may be an indication that the process was unfair.
[28] In this case, the PFL clearly advised the Applicant that the Officer had concerns that he had misrepresented his employment history. It sets out they key information arising from the interview with the manager of Pai River Corner, namely that she did not know the Applicant, the Applicant had never worked at the restaurant, and she had not signed the employment certificate the Applicant had submitted. It is true that in the reasons, the Officer mentioned the additional detail that the manager had said that she never signed employment certificates, but this was not the basis for the Officer’s reasoning. The main point was that the manager said she had not signed the employment certificate the Applicant submitted, and she stated that he had never worked at the restaurant. That is what the PFL set out, and the Applicant was fully on notice of the substance of the Officer’s concerns.
[29] In regard to the Applicant’s claim that he worked at Pai River Corner, the Officer made four key findings: the signatures on the two letters did not match; it is unlikely that a manager who supervised him for two years would not know his legal name; the manager had stated that she never provided signed employment certificates for any employee; and the long-standing restaurant cook had stated that he never worked there. The only detail omitted from the PFL that is key to these points is the last one: namely, that the cook had stated that the Applicant had never worked at the restaurant. The PFL did not indicate that the Officer had spoken with the cook, but I am not persuaded that this was a sufficiently central point as to make the process unfair.
[30] The Applicant knew that the Officer had verified his employment at Pai River Corner. The Applicant knew that the manager had denied knowing him or signing the employment certificate. The Applicant’s submissions in response to the PFL attempted to assuage the Officer’s concerns about this aspect of his employment, thus demonstrating that he was apprised of the essence of the Officer’s concerns.
[31] For these reasons, I am not persuaded that the Applicant was denied procedural fairness. The PFL set out sufficient detail about the nature and substance of the Officer’s concerns to provide the Applicant with a meaningful opportunity to respond. That is all that was required in these circumstances.
B. The decision is not unreasonable
[32] The Applicant submits that the decision is unreasonable on several grounds. He says that the Officer failed to provide an explanation for the finding that the manager’s signature on the two letters did not match, and the Officer has no particular expertise in making such assessments. In addition, the Officer engaged in speculation about what a restaurant manager in Thailand would likely know about the names of employees. In doing so, the Officer ignored other evidence showing that the Applicant was known only by his nickname at another restaurant. Finally, the Applicant argues that the Officer’s doubts about the screenshots he submitted to corroborate his employment at Laim Thong Café were unreasonable because the Officer failed to appreciate that the restaurant’s social media page had existed long before the screenshots were taken.
[33] I am not persuaded that the Officer’s decision is unreasonable, when measured against the Vavilov framework. It is important to underline two points: the alleged flaws in the decision must be “sufficiently central or significant to render the decision unreasonable”
(Vavilov at para 100). Second, it is not the role of a reviewing court to re-weigh the evidence; it is only in exceptional circumstances that a court should interfere with factual findings (Vavilov at para 125).
[34] In this case, the Officer engaged with the evidence and submissions put forward by the Applicant in his original application and his response to the PFL. The Officer did not need any specialized expertise to compare the signatures on the two letters, and there is no indication in the record that the Officer did more than to visually compare them. I disagree that a forensic examination by an expert was required for the purposes of this comparison.
[35] As for the use of nicknames in Thailand, the Officer did not make any broad declaration on this point, but rather simply expressed the view that it was unlikely that the manager would not know the legal name of the Applicant if he had worked at the restaurant for two years. That is a finding that was open to the Officer to make on the record, and I can find no basis to disturb it. The fact that co-workers at another restaurant knew the Applicant by his nickname does not call into question the Officer’s findings. The Officer did not find that the use of nicknames was unusual in Thailand, but rather that someone who managed the Applicant for two years would likely know his legal name. That is a reasonable finding, in particular given that Officers can be expected to acquire considerable local knowledge about the customs and practices in particular countries. I would add that Officers must also be allowed to apply their practical common sense to an evaluation of the evidence, taking care to make sure that they do not fall into the trap of applying Canadian norms or expectations to other cultures.
[36] As for the Officer’s doubts about the screenshots taken from the social media page of the Laim Thong Café, I am not persuaded by the Applicant’s argument. The Officer noted that the screenshots were of very recent origin, and this was obviously a relevant consideration. The fact that the restaurant’s social media page may have existed for a period of time does not call into question the Officer’s findings. It is important to recall that the Applicant submitted the screenshots to corroborate his claim of having worked at the restaurant. The Officer found it odd that he had not submitted the employment letter or screenshots with his original application, and that is a reasonable finding. The Officer also noted that the screenshots appeared to have been taken very recently, and this is also pertinent. I can find no basis to conclude that the Officer’s analysis of this aspect of the case is unreasonable.
IV. Conclusion
[37] For the reasons set out above, the application for judicial review is dismissed.
[38] There is no question of general importance for certification.
Email this Content