Insight
Zarei Law Serves Justice when IRCC makes Unclear Misrepresentation Findings
Nanikova v. Canada (Citizenship and Immigration), 2025 FC 1094 highlights the Federal Court’s emphasis on clear procedural fairness, especially when immigration officers raise concerns about documents or evidence.
In Nanikova v. Canada, the Federal Court set aside a decision made by a Visa Officer refusing two Applicants’ temporary resident visa (TRVs) and for incorrectly finding them inadmissible for misrepresentation under Section 40 of the Immigration and Refugees Protection Act (IRPA).
The Visa Officer’s refusal of the applications resulted from the fact that the Officer incorrectly concluded that the PDF bank statements provided by the Applicants which were downloaded from a mobile application called Dengi and affiliated with the Applicants’ banking institution were fraudulent or altered. A procedural fairness letter (PFL) was issued to the Applicants, however, the Court in assessing the merits of the letter, found that it was too vague which deprived the Applicants of a fair opportunity to respond and address the Visa Officer’s concerns. Moreover, the Court found that the Visa Officer’s decision to refuse the TRVs was unreasonable given that the Officer failed to thoroughly consider the explanations and evidence provided by the Applicants regarding the proof of their funds.
Given that a finding of misrepresentation results in significant consequences for an Applicant as it is accompanied by inadmissibility for a period of five years following the initial determination, the Court reiterated that when a Visa Officer makes an allegation of misrepresentation, the Officer is required to provide clear notice of their concerns to an Applicant. This is because an Applicant has theright to provide specific and clear explanations to address the Visa Officers concerns. Once an Applicant provides their response, the Visa Officer is also required to engage with the Applicant’s response, and in light, must justify their conclusion with reasons that are transparent and have considered the evidence submitted by the Applicant(s). The Visa Officer failed to engage in this level of analysis, rendering their decision unreasonable.
Our Strategy
In approaching this case, we thoroughly assessed the documents initially submitted by the Applicants and the response and additional documents submitted in response to the PFL to determine whether the decision was justified, transparent, and intelligible.
Right away, we recognized that the PFL issued to the Applicants was rather broad. Despite this, the Applicants still provided a thorough and comprehensive response alongside significant corroborating evidence which should have addressed the Visa Officer’s concerns. However, the Visa Officer failed to consider this evidence.
Furthermore, given that a finding of misrepresentation carries significant consequences, Courts expect a higher duty of fairness and reasoning by Visa Officers. It was evident in this case given the reasons for refusal listed by the Officer that the Officer did not carefully and thoroughly address the evidence that was submitted by the Applicants. Specifically, because the Visa Officer failed to explain how he/she came to the conclusion that the bank data was fraudulent. The failure to provide a rational explanation undermined the intelligibility of the decision.
In forming our arguments, we relied on case law where similar flawed reasoning by a Visa Officer was rejected by the Court to demonstrate that the Officer failed to render a justified decision as required by law in this case as well. By taking this approach, we ensured that we could demonstrate that the decision must be set aside and remitted to another Visa Officer for a rigorous analysis in accordance with immigration laws.
Verdict
The Federal Court found the decision unreasonable and granted the judicial review. The refusal of the applications was then quashed and remitted to a different Visa Officer for redetermination.
