Why misrepresentation in Canada should scare you!

General

Oct 28

What is Misrepresentation and how could it affect you? Where is Misrepresentation defined?

In Canadian Immigration law, misrepresentation is defined in section 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27. It applies to permanent residents or foreign nationals. A person can be found inadmissible to Canada “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.”

What does Misrepresentation include?

Let’s break that down. You can be inadmissible for misrepresentation for statements or answers to questions on forms that:

You directly provide in your immigration applications; or
You indirectly provide in your immigration applications; or
Someone else provides in your immigration applications (this includes misrepresentation by an immigration consultant without your knowledge).
Misrepresentation can include, among other things:
Slanting the facts;
Mischaracterizing the facts;
Presenting the facts in a way that is misleading;
Withholding the facts;
Hiding the facts;
Not mentioning facts that are embarrassing or uncomfortable;
Telling a white lie;
Lying in any form.

Misrepresentation must be material or relevant

The interpretation of what is material or relevant in an immigration application has been found by the Courts to be very broad. A material fact can include anything that an immigration officer would want to investigate or verify. A material fact may be a detail that could have affected an officer’s decision or that prevents an officer from a line of inquiry. For example, failing to disclose a prior US visitor visa refusal has consistently been found to be material and relevant to an applicant’s work or study permit application.

The fact that misrepresentation could induce an error in the administration of IRPA is enough

An applicant’s misrepresentation or failure to disclose does not have to result in Immigration actually making an error. If the applicant’s misrepresentation or failure to disclose could have resulted in Immigration making an error, or if it means an officer is not able to conduct appropriate background or security checks, you can be found to be inadmissible.

If the basis of how you were approved for a work permit, study permit, visitor visa, or permanent residence was based on misrepresentation, you are always at risk of losing your status because Immigration might make a finding of inadmissibility for misrepresentation against you.

How does an immigration officer make a decision that you are inadmissible?

There is usually no in person meeting with an officer. Instead, an applicant simply gets an email or letter from IRCC that states:

I am not satisfied that you have truthfully answered all questions asked of you.
You have been found inadmissible to Canada in accordance with paragraph 40(1)(a) of the Immigration and Refugee Protection Act (IRPA) 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 the IRPA. In accordance with paragraph A40(2)(a), you will remain inadmissible to Canada for a period of five years from the date of this letter or from the date a previous removal order was enforced.

What are the consequences of a finding of misrepresentation in Canada?

Under s.40(2)(a) of IRPA, supra,:

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;

Under s. 40(3) of IRPA, supra:

A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a).

The time that misrepresentation can haunt you is therefore very long.

If a finding of misrepresentation was made against you from outside Canada (you were an overseas Federal Skilled Worker applicant, for example) then you are inadmissible and the misrepresentation bar is in place from the date on the misrepresentation letter.

If the finding of misrepresentation was made against you inside Canada, then you are inadmissible but the clock does not start ticking on your 5-year bar until your removal is enforced. Determining when a removal order is enforced can be a complicated area. For simplicity, if the misrepresentation finding was made against you inside Canada, assume that you cannot apply for permanent residence to Canada for 5 years after you depart Canada.

Tell the truth, the whole truth, and nothing but the truth

You can avoid the perils of misrepresentation by being diligent, detail-oriented, honest, and thorough in every one of your applications to Immigration. Keep full copies of everything you send to Immigration. Work with an experienced Immigration lawyer and review each form and supporting document and write a Letter of Explanation about aspects of your case that do not fit on the forms.

If you get a request for further information on your application in progress then seek help

Often, an immigration officer may have spotted an inconsistency in your application and ask you for further information. If you get a request for further information, Immigration usually only gives a short period of time for you to respond and upload your documents. Make sure to book a consultation with an experienced Immigration lawyer right away to review what might be at issue.

If you get a Procedural Fairness Letter, seek help immediately but it may be too late!

If an immigration officer sends you a Procedural Fairness Letter where they warn you that they think you might be inadmissible for misrepresentation, you should seek legal advice right away. However, by the point you get a PFL, it might be too late to save you from a finding of inadmissibility for misrepresentation.

Two recent Federal Court cases

The Federal Court released two recent cases that summarize some key misrepresentation principles.

In Malik v. Canada (Citizenship and Immigration), 2021 FC 1004 (CanLII), the applicant applied for a study permit and said “yes” she had been refused a prior application and listed her Canadian refusals but not the US visa refusal (she had disclosed the US visa refusal on a prior Quebec investor form but that was held to be insufficient). The Judge upholds the misrep finding as reasonable. The applicant was barred from applying to Canada for 5 years even though her children were studying in Canada.

Another recent case where the 5-year misrepresentation bar was upheld is on an Afghani's LMIA-supported work permit application because he failed to disclose his prior PR application refusal and was inconsistent in his work history: Hasham v. Canada (Citizenship and Immigration), 2021 FC 880 (CanLII).

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