Case Overview
Recently, in the Patel v. Canada (Citizenship and Immigration), 2023 FC 1394 decision, the Federal Court of Canada allowed our client’s appeal and overturned a spousal open work permit refusal which had also resulted in a finding of misrepresentation and a five (5) year ban to Canada for the spouse.
This was one of several similar cases we were retained to appeal around the same time where the New Delhi visa office had refused our clients’ spousal open work permit applications and found them inadmissible for misrepresenting the genuineness of their relationship.
We are pleased to report that we were successful in overturning all of these refusals, either by court order or by a settlement agreement with the Minister.
Jain Immigration Law Representation
In this particular case, we had challenged the visa officer’s decision on two grounds: (1) that it was procedurally unfair, and (2) it was unreasonable based on the evidence provided in the application. The Judge agreed with both arguments and allowed the appeal.
On the issue of procedural fairness, Justice Elliot noted as follows: [27] I agree with the Applicant that as notice was not provided, the Applicant was left with no opportunity to respond after the initial interview. The Applicant should have been provided with an adequate opportunity to respond, either by being given advance notice that the general purpose of the interview was to assess the genuineness of the marriage or by providing an opportunity to file additional submissions after the interview responding to the specific questions raised in the interview. An officer is required to provide more than general concerns in the fairness letter when a refusal will result in a finding of misrepresentation and a five (5) year ban: Toki v Canada (Immigration, Refugees and Citizenship), 2017 FC 606 at paras 17, 24-25.
The second issue we raised in the appeal was that the decision was unreasonable because the visa officer had made an unsupported leap from the reasonable finding of insufficient evidence, to the finding of fraud with misrepresentation. Justice Elliot agreed, noting as follows: [31] I agree with the Applicant that at most the Officer may have determined the Applicant and her spouse had provided insufficient corroboratory evidence that their marriage is genuine, resulting in a refusal of the spousal work permit.
However, it was unreasonable and incorrect of the Officer to make an “unsupported leap from the reasonable finding of insufficiency of evidence to one of misrepresentation”: Xu at para 16.
Final Decision
A misrepresentation is not proved where the evidence is found only insufficient to establish the necessary criteria for admissibility. As a result, I find that the misrepresentation finding was made without regard to the evidence and must be set aside. As a result of this decision, the client’s ban was lifted and the matter remitted back to be re-determined by a new officer.
You can read the full copy of the decision here.
If you are looking for an experienced lawyer for complex immigration matters, we can assist. Contact us to book a consultation.