Misrepresentation
A “misrepresentation” refers to the act of providing false or misleading information on an immigration application or withholding important information. It is important for individuals to be honest and transparent on their immigration applications to Canada.
What is a Misrepresentation?
Misrepresentation is a serious issue. In addition to a rejection, it can lead to a five-year ban from Canada.
A “misrepresentation” refers to the act of providing false or misleading information on an immigration application or withholding important information. It is important for individuals to be honest and transparent on their immigration applications to Canada.
The definition and scope of misrepresentation is broad. Even if you made a mistake or misunderstood a question on your application, it can still be considered misrepresentation if it results in false or misleading information being provided.
Key basics about misrepresentation
Misrepresenting your intentions is a misrepresentation
Your intentions need to be truthful. If you are applying for a study permit, you must have the intention to actively pursue a study program. If you apply for a work permit with a specific employer, you must have the intention of working for this employer. This can include applying for a temporary visa, such as a work or study permit, with the intention of staying in Canada permanently.
This equally applies to visitor visas. If you make an application to visit a friend, but your true intention is to get married and file for sponsor on the same visit, this could be a misrepresentation.
Misrepresentation can lead to a 5-year bar from Canada
The effects of a misrepresentation are serious. If an individual is found to have provided false or misleading information on an immigration application, or if they have withheld important information, they may be barred from entering Canada for a period of up to five years. If the individual is already in Canada, they may be issued a removal order and required to leave the country. If they fail to leave, a warrant can be issued for arrest.
Misrepresentation findings can be made AFTER an application is approved
Misrepresentation can occur at any time during the immigration process, including after an application has been submitted.
For example, if an individual provides false or misleading information on an immigration application and is subsequently granted a visa or permanent residency, they may be found to have committed misrepresentation if it is later discovered that the information, they provided was false. Similarly, if an individual withholds important information on their application and is subsequently granted a visa or permanent residency, they may be found to have committed misrepresentation if this information is later discovered.
If an individual is found to have committed misrepresentation after their application has been submitted, they may be subject to consequences to the same consequences, such as being barred from entering Canada for a period of up to five years, or being issued a removal order if they are already in the country.
Common misconceptions about misrep…
Withholding information can be a misrepresentation
One common misconception about misrepresentation is that it only refers to actively providing false information. However, withholding important information can also be considered misrepresentation.
For example, if an individual fails to disclose a criminal conviction or a previous refusal on their immigration application, this could be considered misrepresentation.
As another example, if you fail to disclose information about a family member not included in the application, this could be considered a misrepresentation.
Misrepresentation applies to all immigration applications
Another common misunderstanding is that misrepresentation only applies to individuals applying for permanent residency in Canada. In fact, misrepresentation can also apply to individuals who are applying for temporary visas, such as work or study permits. Misrepresentations equally apply to permanent residence, such as Express Entry, Provincial Nominee Programs or other Permanent Resident programs.
Overview of misrepresentation in law…
The Immigration and Refugee Protection Act (called the “IRPA”) is the source for immigration legislation, including inadmissibility and misrepresentation. Immigration, Refugees and Citizenship Canada administers the IRPA and makes decisions on immigration applications.
The Federal Court of Canada has the jurisdiction to hear applications for judicial reviews of immigration decisions, including those related to misrepresentation. A judicial review is a process through which the Federal Court can review the decision-making process of an immigration officer and determine whether the officer followed the correct legal procedures and applied the relevant laws and policies correctly.
If an individual believes that they have been the victim of a misrepresentation finding and that IRCC has made a mistake, they may be able to apply for a judicial review of the decision in the Federal Court. The Federal Court will then review the decision to determine if it was reasonable, based on the evidence and the applicable laws and policies.
Inadmissibility under the IRPA
Before discussing misrepresentation, it’s important to understand that an individual may be found to be inadmissible to Canada for various reasons. Inadmissibility refers to the inability of an individual to enter Canada or to obtain a visa to enter the country. A misrepresentation is one of many grounds for inadmissibility under the IRPA.
There are several grounds on which an individual may be found inadmissible to Canada, including:
Security: If an individual poses a risk to the security of Canada, they may be found inadmissible. This can include individuals who have been involved in terrorism, espionage, or organized crime.
Human or international rights violations: If an individual has been involved in human rights violations or has committed an act outside of Canada that would be a crime if committed in Canada, they may be found inadmissible.
Serious criminality: If an individual has been convicted of a serious crime, or if they have a criminal record and are likely to commit a crime in Canada, they may be found inadmissible.
Health: If an individual has a health condition that poses a risk to public health or safety, or that would cause excessive demand on Canada's health care system, they may be found inadmissible.
Financial: If an individual is unable to support themselves and their dependents, or if they are likely to become a burden on Canada's social services, they may be found inadmissible.
Misrepresentation: If an individual is found to have provided false or misleading information on an immigration application, or if they have withheld important information, they may be found inadmissible.
If an individual is found inadmissible to Canada, they may be barred from entering the country or may be denied a visa to enter the country. In some cases, an individual may be able to pursue a judicial review. This involves demonstrating that IRCC made a mistake in deciding the application and finding that a misrepresentation occurred.
Section 16 of the IRPA
You have an obligation to truthfully answer all questions and provide supporting documents:
16(1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonable requires.
Your application could be rejected if you fail to truthfully answer all questions under section 16. This does not lead to a ban on its own. However, a finding of misrepresentation under section 40 usually accompanies a section 16 finding. The misrepresentation finding leads to a five-year ban.
Section 40(1)(a) of the IRPA
Under section 40 of the IRPA, an individual can be found to have committed misrepresentation if they:
Provided false or misleading information on an immigration application, or
Withheld important information on an immigration application.
If an individual is found to have committed misrepresentation, they may be barred from entering Canada for a period of up to five years. In addition, if the individual is already in Canada, they may be removed from the country.
Here is a precise text of section 40(1)(a) of the IRPA:
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;
How to avoid a misrepresentation?
Be truthful and honest
It goes without saying that the best way to avoid a misrepresentation is to be truthful and honest. Disclose complete information. Answer all questions on the forms. Provide additional details and supporting documents necessary to properly decide your application, even if they are not explicitly required in the instructions or guides.
If an individual is found to have committed misrepresentation, they may be barred from entering Canada for a period of up to five years, or they may be issued a removal order if they are already in the country.
In addition, an individual who has been found to have committed misrepresentation may face difficulties when attempting to immigrate to other countries in the future, as many countries have information sharing agreements with Canada and may be made aware of a misrepresentation finding.
Do not hide information “since they will never know”
You must truthfully answer the questions and provide an honest, complete answer. Even silence can be a misrepresentation. This includes disclosing criminal convictions, disclosing previous visa refusals and previous employment – whether or not you believe that IRCC will find out.
It is a common misconception that if you do not disclose certain information on your immigration application, immigration officials will never find out. However, this is not the case. Immigration authorities have access to a variety of sources of information, and they may use these sources to verify the information provided on your application. If it is discovered that you have withheld important information or provided false or misleading information on your application, you may be found to have committed misrepresentation.
Information submitted in applications to other countries - information sharing agreements
It is important to provide consistent and truthful information in all immigration applications, even between other countries. Canada has information-sharing agreements for immigration applications with various countries, including Australia, the United Kingdom, the United States of America, and other countries. If you notice a mistake in a previous application, it is best to correct it and not continue the misrepresentation.
Letter of explanation
A letter of explanation can provide additional details, context, or clarifications. The goal is to help immigration officers understand your situation and make an informed decision.
The forms and online portals are rigid. Most of them only have a short place to write an explanation. The wording of a question might create uncertainty and not fully explain your situation.
In this case, a letter of explanation may provide more details. These are usually uploaded in the client information slots in online applications. There is no precise format. Make sure you indicate your name, UCI and, at the very minimum, an electronic signature. Have subtitles for long letters. Explain in detail what the issue is and provide as much information as possible.
Provide supporting documents
Supporting documents are a key part of any immigration application. If you are uncertain about an element of your application, you can provide additional documents to explain any ambiguities and provide further information. This may also avoid delays in processing your application.
Have your application reviewed by a lawyer
Our lawyers at Holthe Immigration Law can help you properly prepare an application and ensure that all supporting documents are included. A lawyer can also help to identify any potential issues or areas of concern that may impact your eligibility for immigration to Canada. We provide guidance on the immigration process and help understand what needs to be disclosed in the application.
How to overturn a misrepresentation finding?
Judicial review at the Federal Court
The Federal Court plays a crucial role in the judicial review process for misrepresentation decisions made by immigration officials. It has the authority to review the decision-making process to ensure that it was fair and reasonable and may set aside the decision if it was found to be unreasonable.
You can seek a judicial review if you believe the decision to make you inadmissible for misrepresentation was unreasonable.
The Federal Court does not have the jurisdiction to reconsider the facts of the case or substitute its own decision for that of the immigration officer. Its role is limited to reviewing the decision-making process to ensure it is fair and reasonable.
If the Federal Court determines that the decision was unreasonable, it may set aside the decision and send it back to the immigration officer for reconsideration. There is no cost awarded in immigration proceedings unless it is exceptional.
See our webpage on a judicial review at the Federal Court for a complete overview of the process.
Can you make a request for reconsideration?
A request for reconsideration is an informal process where you ask the immigration officer to reopen your refused application.
Generally speaking, it would be difficult to convince an immigration officer to overturn the misrepresentation finding. It is unlikely that a request for reconsideration would be accepted. You would have received a procedural fairness letter, where you had an opportunity to reply and provide additional documents.
Can you reapply?
A misrepresentation finding would make you inadmissible to Canada for five years. You would not be able to reapply.