Case law update: Justice Zinn on misrepresentation and materiality

In Idelfonso v. Canada (Citizenship and Immigration), 2025 FC 392, Justice Zinn granted judicial review of an Immigration Division (ID) finding of misrepresentation under s. 40(1)(a) of the IRPA, setting aside a five-year exclusion order against a Brazilian foreign national who omitted resolved Canadian criminal charges (a conditional discharge for mischief, with assault charges stayed, resulting in no conviction under Criminal Code s. 730(3)) from a 2023 work permit application.

The ID (the Immigration Division) had deemed the omission material, as it “closed off an avenue of investigation” into the applicant’s background, relying on precedents like Brooks, Cao, Afzal, and Goburdhun to hold that non-disclosure need not be determinative but only capable of averting inquiry, even without independent inadmissibility grounds. The Court found this unreasonable, criticizing the ID’s misapplication of the materiality test: it required not merely a generic obstruction of inquiry, but a demonstrated nexus between the omission and a potential error in IRPA administration—i.e., how the withheld information could mislead on statutory eligibility criteria for the specific application (here, work permit extension).

The Court emphasized that, for charges fully resolved via Canadian judicial processes (leaving no conviction or unresolved uncertainty), the omission posed no realistic risk of inducing error, as immigration officers would have no residual grounds to probe for criminal inadmissibility. Absent identification of foreclosed “specific inquiries” tied to relevant IRPA factors, the analysis fell short of Vavilov’s justification requirement, rendering the decision deficient.

This ruling arguably elevates the materiality threshold post-Vavilov by demanding transparent, context-specific reasoning beyond boilerplate “risk of error” or inquiry-foreclosure assertions, particularly for domestically resolved, non-convicting matters where no latent inadmissibility lurks. It reinforces that materiality is objective but must be evidenced—not presumed— potentially narrowing rote findings in misrep/omission cases.

This was excellent work by Applicant’s counsel who also assisted at the ID (the decision there showed that he also tried to advance the innocent mistake or honest misrepresentation defense) and at a successful federal court stay application (CBSA attempted to deport his client on the basis of the removal order issued by the immigration division) before Justice Grammond, which kept his client in Canada, until this decision by Justice Zinn.