Kan v. Canada (Citizenship and Immigration)

Kan v. Canada (Citizenship and Immigration) Court (s) Database Federal Court Decisions Date 2025-11-25 Neutral citation 2025 FC 1869 File numbers IMM-20638-24 Decision Content Date: 20251125 Docket: IMM-20638-24 Citation: 2025 FC 1869 Montréal, Quebec, November 25, 2025 PRESENT: Mr. Justice Sébastien Grammond BETWEEN:

LINGJUAN KAN Applicant and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent

JUDGMENT AND REASONS [1] Ms. Kan sought reconsideration of a finding of misrepresentation. A visa officer denied her request, finding that the initial decision was valid in fact and in law. She is now seeking judicial review of the refusal to reconsider. I am dismissing her application. While the officer’s reasons are brief, Ms. Kan did not put forward any valid ground showing that it would be in the interests of justice to reconsider the initial decision. The refusal was reasonable. I. Background [2] Ms. Kan, a Chinese citizen, applied for permanent residence in the Quebec investor class. Her application was denied, because she was found inadmissible to Canada for misrepresentation. [3] In her initial application, Ms. Kan stated that she had never been a member of any association or organization. By consulting open sources, however, the visa officer discovered that Ms. Kan had in fact been a member of two organizations. The officer then sent a procedural fairness letter [PFL] asking Ms. Kan to explain the situation. In response, Ms. Kan did not deny her membership in those two organizations. She stated that she had understood the question to refer only to political associations, which, in her view, the organizations in question were not. The officer then found Ms. Kan inadmissible for misrepresentation pursuant to section 40 of the Immigration and Refugee Protection Act, SC

2001, c 27 [the Act], because she admitted her membership in the two organizations yet initially failed to declare it, and the misrepresentation was material. [4] Ms. Kan did not seek judicial review of this decision. Instead, she applied to the officer for reconsideration. She provided additional evidence purporting to show that her initial incorrect answers were due to a mistake made by the translator who helped her fill out the forms. She argued that her situation came under the innocent mistake exception recognized by this Court’s case law. She also sought relief based on humanitarian and compassionate [H&C] considerations, pursuant to section 25 of the Act. In this regard, she emphasized the severe consequences of a five-year ban from entering Canada, given that her son resides in this country and that she would not be able to reapply in the Quebec investor class, because applicants are now required to be fluent in French. A visa officer denied the request for reconsideration. The GCMS notes merely state: “Reconsideration request reviewed and considered. I note there was no error in law or fact made, therefore no change to the original decision.” [5] Ms. Kan now applies for judicial review of the reconsideration decision. II. Analysis [6] In Canada (Citizenship and Immigration) v Kurukkal, 2010 FCA 230, the Federal Court of Appeal held that administrative decision makers

may reconsider their decisions. The process is divided in two stages: the decision maker must first decide whether they will entertain the request for reconsideration; if they do, then the second step is for the decision maker to reconsider the decision on its merits. At the first stage, the applicant must show that “reconsideration is warranted in the interests of justice or because of the unusual circumstances of the case”: Jaworski v Canada (Citizenship and Immigration), 2024 FC 393 at paragraph 11. It goes without saying that reconsideration should not be lightly granted and is not meant to afford applicants a second try. [7] Here, the parties agree that the application for reconsideration was denied at the first stage. However, Ms. Kan argues that the reasons given by the officer for refusing the reconsideration request were insufficient, as required by Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653 [Vavilov]. Moreover, the officer would have failed to consider the extensive evidence filed in support of the application. [8] The starting point of the analysis is that insufficiency of reasons is not an independent ground for judicial review: Vavilov at paragraph 91. Rather, the Court must consider the context in which the impugned decision was rendered, which includes the evidence and the submissions of the parties: Vavilov at

paragraph 94. [9] In this case, the relevant context includes the peculiar way Ms. Kan framed her application for reconsideration. She conceded from the beginning that “the refusal decision is valid in law.” Rather, her application for reconsideration was intended to introduce new facts, to invoke explicitly the innocent mistake exception and to raise H&C considerations. In fact, the bulk of her submissions concerned H&C factors. [10] At that stage, the officer’s task was to determine whether the interests of justice or unusual circumstances warranted the reconsideration of Ms. Kan’s application. [11] In my view, Ms. Kan’s admission that the initial decision was correct goes a long way towards showing that the interests of justice do not warrant reconsideration in this case. The officer cannot be faulted for emphasizing this in the GCMS notes. [12] It may be that the discovery of new evidence is a valid ground for reconsideration. Ms. Kan, however, did not provide satisfactory reasons why the additional evidence could not have been filed with the initial response to the PFL. The only explanation is that the filing of additional evidence results from extensive discussions with her new counsel. It is obvious that it is not in the interests of justice to reconsider a decision simply because the applicant retained new counsel and adopted a new strategy. Nor does this constitute

unusual circumstances. [13] The same is true of H&C considerations—Ms. Kan did not explain to the officer what prevented her from raising this issue in her initial response to the PFL. Moreover, as Ms. Kan is not present in Canada, section 25 of the Act did not require the officer to consider H&C factors. I am unaware of case law incorporating H&C factors in the analytical framework for the assessment of allegations of misrepresentation pursuant to section 40 of the Act. As the parties have not provided meaningful submissions on this issue, I will refrain from saying anything further. [14] At the hearing, Ms. Kan suggested that the H&C considerations were relevant to the first step of the inquiry—the decision ought to be reconsidered merely because it has severe consequences for her and her son. This, however, is simply asking for a second chance. This is not a valid reason to reconsider a decision. If this were true, there would rarely be any finality to findings of misrepresentation, as the five-year ban will almost always disrupt a person’s life plans. [15] Thus, read in context, the reasons given by the officer allow the Court to understand why the decision was made and to find that it was reasonable. As the decision was made at the first stage of the reconsideration process, the officer was not required to address the merits of the case, analyze the innocent mistake

exception or review the evidence supporting the H&C submissions: Wophill v Canada (Citizenship and Immigration), 2023 FC 1618 at paragraph 15. Neither are officers required to provide extensive reasons to justify the refusal of a reconsideration application: Tanyanyiwa v Canada (Citizenship and Immigration), 2023 FC 559 at paragraph 21. III. Disposition [16] As the officer’s decision to refuse to reconsider the finding of misrepresentation was reasonable, Ms. Kan’s application for judicial review will be dismissed. JUDGMENT in IMM-20638-24 THIS COURT’S JUDGMENT is that 1. The application for judicial review is dismissed.

2. No question is certified. "Sébastien Grammond" Judge

FEDERAL COURT

SOLICITORS OF RECORD Docket: IMM-20638-24 STYLE OF CAUSE: LINGJUAN KAN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: November 24, 2025 JUDGMENT AND REASONS: GRAMMOND J. DATED: November 25, 2025 APPEARANCES: Gabrielle Thiboutot Annabel Busbridge For The Applicant Éloïse Eysseric

FOR THE RESPONDENT SOLICITORS OF RECORD: Bertrand, Deslauriers avocats Montréal, Quebec For The Applicant Attorney General of Canada Ottawa, Ontario

FOR THE RESPONDENT