Misrepresentation
Misrepresentation is a serious offence that occurs as a result of false information being provided to Canadian Immigration authorities.
What is Misrepresentation?
Section 40 of the Immigration and Refugee Protection Act (“IRPA”) provides that a permanent resident or foreign national is inadmissible to Canada for mispresenting or withholding material facts in relation to their matter that could or has induced an error in the administration of Canada’s immigration laws. Section 40 is given a broad interpretation to encompass misrepresentations even if they are made by immigration consultants and lawyers without the knowledge of the applicant.
In order to protect the integrity of the immigration process, Canada is very strict on misrepresentation. If an applicant has been found to have misrepresented, the consequence is denial of entry, refusal of applications, loss of visitor or permanent resident status, revocation of citizenship prosecution and a five-year bar from applying and entering Canada. Applications submitted during the five-year bar are a “nullity,” and refusals cannot be appealed.
Responding to a Procedural Fairness Letter (PFL) for Misrepresentation
Before a final determination on misrepresentation is made, the applicant will be given the opportunity to respond to the concerns of the officer. Once IRCC makes an allegation of misrepresentation, an applicant cannot simply withdraw the application. Applicants are usually given between seven and thirty days to respond to the procedural fairness letter. It is extremely important to submit a detailed response with legitimate factual arguments. Often, individuals do not appreciate the seriousness of the situation. It is far easier to seek support for the response of your PFL response than once a five-year ban is imposed.
Misrepresentation is complex, and the exception is narrow, applying only to cases that are considered truly extraordinary. It is long recognized that “honest errors and misunderstanding sometimes occur in completing application forms and responding to questions.” While a misrepresentation may have been made, officers are to apply reasonableness and fairness to assessing these situations.
Once a misrepresentation is known, can it be fixed? Innocent misrepresentations happen – the immigration forms, requirements, and processes are not always as straight forward as they seem.
If a question is answered incorrectly, it does not mean misrepresentation will result. The question of materiality and relevancy will follow and whether misrepresentation induced or could have induced an error in the administration of the Act. For example, as seen in Murugan v. Canada, omitting a visitor visa refusal from a permanent residence application could not result in an error in the administration of the Act. Innocence alone will not protect applicants from misrepresentation.
Assuming the misrepresentation is material and relevant, an exception is available where applicants can show they honestly and reasonably believed they were not withholding material information, often referred to as “subjective unawareness.”
The onus remains on the applicants to prove they meet an exception, making a response to a procedural fairness letter incredibly important to their future in Canada.
What happens if I am found inadmissible for Misrepresentation?
If you have been found inadmissible due to misrepresentation, steps to remove your inadmissibility will depend on your circumstances.
If there are no appeal rights or the period to submit a Judicial Review has passed, those wishing to enter Canada temporarily will be required to apply for a TRP if entry is justified in the circumstances; click here to learn more about TRPs. Individuals wishing to apply for permanent residence will need an H&C assessment in their permanent residence application to remove or overcome the inadmissibility. The officer will determine if the H&C considerations are sufficient to warrant a waiver of the inadmissibility.
Additional applications may be required for you to be able to return or stay in Canada, depending on the reason for your misrepresentation finding. Every case is different, and the best way to understand your options is to speak to a licensed professional.
What happens if my family member is inadmissible to Canada?
The Immigration and Refugee Protection Act (IRPA) determines when a permanent or temporary resident becomes inadmissible by virtue of having an inadmissible family member. The scope of this type of inadmissibility is broader for permanent residents than temporary residents- permanent residents wish to remain in Canada permanently and have the opportunity to sponsor their family members who can benefit from exemptions for inadmissibility. If you or a family member has been found inadmissible due to misrepresentation, it’s important to understand how this will impact future immigration applications.
Permanent resident applicants or permanent residents of Canada can be inadmissible if their family member is inadmissible because of serious criminality, criminality, health grounds, financial reasons, misrepresentation, and non-compliance. Temporary residents, however, can only be inadmissible because of their family members if their family members are inadmissible for reasons of security, international or human rights violations or organized crime. While all family members must be disclosed on an application, an applicant for temporary residence can submit their application leaving their inadmissible family member behind.
Are you inadmissible due to Misrepresentation?
Misrepresentation is a complex area of immigration law. If you have received a procedural fairness letter or are inadmissible due to misrepresentation, seeking professional support from licensed practitioners can make all the difference in your steps. Contact NextGen to book your consultation and find out how we can help you.