What Does a Finding of Misrepresentation Mean for You?

A finding of misrepresentation on your immigration application may render you inadmissible to Canada. A result of this finding of inadmissibility can result in a 5-year ban from being able to immigrate or travel to Canada. Client’s often approach us with this issue, and we let them know that this is one of the strictest rules when it comes to Canada’s immigration laws. A finding of misrepresentation is tough to turn around but luckily, we have had the ability to challenge this on a number of occasions for our clients.

Clients are often notified about a misrepresentation in advance of the making of a final decision. This is done through what is called a “Procedural Fairness Letter.” Typically, the immigration officer provides you with a 15 day notice advising you of their concerns. This could be with regards to a number of issues:

• Fraudulent documentation;
• Non-declaration of previous visa refusals;
• Non-declaration of family members or relationships on previous applications that were discovered now; or
• Lying or not-declaring criminal charges or convictions.

Responding to the Procedural Fairness Letter is incredibly important and should not be taken lightly. A response should be thorough and provide clarity around what had happened. One of the most common problems, when it comes to misrepresentation, is the reliance on bad immigration representation. We often hear from clients that they simply “signed the forms” without reviewing them – or that their immigration representative did not give them a chance to review the forms and the client relied on the immigration representative to complete these materials properly. The Federal Court has little sympathy for people in these positions. Ultimately, the position taken is that you, the applicant, are responsible for the contents of your forms.

In Haque v. Canada (Minister of Citizenship and Immigration), [2011] F.C.J No. 394  the Court found that the fact that an immigration consultant was to blame for the misrepresentation that occurred was no defense to a finding of inadmissibility under s. 40 of the Act.

Misrepresentation

40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

(c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or

(d) on ceasing to be a citizen under

(i) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force,

(ii) subsection 10(1) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act, or

(iii) subsection 10.1(3) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act.

Application

(2) The following provisions govern subsection (1):

(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

(b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

Section 40 applies to the following immigration applications whether they are made abroad, at a port of entry or from within Canada:

• Applications for permanent residence
• Applications for visas for permanent resident status
• Applications for temporary residence
• Applications for work and study permits, and for
• Renewals and extensions of status

The most common allegation of misrepresentation comes from section 40(1)(a). Here, a person inadmissible for directly or indirectly misrepresenting or withholding a material fact relating to a relevant matter that induces or could induce an error in the administration of this Act. There are consequently several different aspects to s. 40 (1)(a):

1. There must be a direct or indirect misrepresentation or a withholding. The determination of this first factor is largely fact driven and subject to deference on judicial review.
2. The second requirement is that the misrepresentation or withholding must relate to a material matter. There is an onus on the Minister to establish that the withholding or misrepresentation related to a matter was material to the application in question.
3. The final requirement of this subsection is that the misrepresentation induces or could induce an error in the administration of the Act.

The most common exception comes from what has been deemed “innocent misrepresentation.” This exception occurs when the individual honestly and reasonably believes that they were not misrepresenting a material fact. Justice Tremblay highlighted the following in Goudarzi v. Canada (Minister of Citizenship and Immigration), 2012 FC 425 at paragraph 33 of the decision:

 [33]  … Rather, the general rule is that a misrepresentation can occur without the applicant’s knowledge, as noted by Justice Russell in Jiang, above, at paragraph 35:

[35]           With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O’Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it. The Court stated that an initial reading of section 40 would not support this interpretation but that the section should be interpreted in this manner to prevent an absurd result. (Emphasis added.)

 [33]  A few cases have carved out a narrow exception to this rule, but this will only apply for truly exceptional circumstances, where the applicant honestly and reasonably believed they were not misrepresenting a material fact.

Depending on your circumstances, you can challenge or appeal a finding of misrepresentation by going to the Federal Court of Canada or the Immigration and Refugee Board of Canada, Immigration Appeal Division (“IAD”). The IAD is open to permanent residents who have lost their PR status whereas the Federal Court is typically for everyone else.  Remember, a finding of misrepresentation can render your entire application as refused. This includes if the misrepresentation came from one of your dependents on your application, and not you directly.