Certified Question on Misrepresentation

12th Oct 2011 Comments Off on Certified Question on Misrepresentation

Last Updated on October 12, 2011 by Steven Meurrens

I recently did a post about a Federal Court decision which suggests that there is an innocent mistake exception to misrepresentation.  Not one week later, Justice Hughes of the Federal Court certifies the following question:

Is a foreign national inadmissible for misrepresenting a material fact if at the time of filing his/her application for permanent residence or at the time of granting permanent residence he/she had no knowledge of the material fact that constituted such misrepresentation?

The Federal Court of Appeal’s answer to this certified question will likely clarify many aspects of s. 40 misrepresentation.

The facts giving rise to the question can briefly be summarized as follows: Mr. Osisanwo submitted a birth certificate stating that he was the child of Cladius and Modupe. Immigration officials were not satisfied with the birth certificate and required DNA testing.  The testing concluded that while Modupe was Mr. Osisanwo’s mother, Cladius was not his father.  Modupe stated that she did not know that Cladius was not the biological father, and this point as not challenged.

In discussing the jurisprudence on the matter, Justice Hughes quoted at length from the Federal Court’s decision in Singh v. Canada (Minister of Citizenship and Immigration), 2010 FC 378.  There, the court stated that:

Given that the word “knowingly” does not appear in Section 40, it follows, the submission goes, that knowledge is not a prerequisite to a finding of misrepresenting or withholding material facts. Undoubtedly, the existence of a child is a material fact.

I do not find this comparison helpful. Section 127 is in the “General Offences” section of IRPA.

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Innocent Mistakes, Misunderstandings, and Misrepresentation

10th Oct 2011 Comments Off on Innocent Mistakes, Misunderstandings, and Misrepresentation

Last Updated on October 10, 2011 by Steven Meurrens

One of the most difficult issues to resolve when an individual is immigrating to Canada are allegations from the Government of Canada about misrepresentation.

Section 40(1)(a) of Canada’s Immigration and Refugee Protection Act states provides that a permanent resident or a foreign national is inadmissible to Canada for misrepresentation 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 Canadian immigration law.

A significant issue that often arises is whether or not a misrepresentation has to be intentional.  The jurisprudence consistently provides that in order for a finding of misrepresentation to be made an applicant doe not have to intend to misrepresent themselves: Chen v. Canada, 2005 FC 678.   IRCC officers do, however, have to be satisfied that the person was subjectively aware of the information that they allegedly misrepresented, and that a party cannot be faulted for failing to impart information which is unknown to him/her: Jean-Jacques v. Canada, 2005 FC 104.

But what about where there is an innocent mistake or misunderstanding?  If an officer is satisfied that an individual has innocently misrepresenting something, can the fact that the misrepresentation was innocently made be an exception to misrepresentation?

In Berlin v. Canada (2011), the Court explored in detail whether such an exception exists.  There, an immigration officer determined that Mr. B had committed misrepresentation because Mr. B failed to declare his relationship as the adoptive father of two children from a previous marriage.  When the immigration officer asked why he did not declare them, Mr. B indicated that he did not believe them to be dependants for the purpose of Canadian immigration purposes.

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Personalized vs. Generalized Risk

8th Oct 2011 Comments Off on Personalized vs. Generalized Risk

Last Updated on October 8, 2011 by Steven Meurrens

As the political situations in several Latin American countries worsens, there has been a steady increase in the number of refugee cases being decided on the issue of personalized vs. generalized risk.

Section 97(1)(b)(ii) of the Immigration and Refugee Protection Act states that a person in need of protection is a person in Canada whose removal to another country would subject them personally to a risk to their life or to a risk of cruel and unusual treatment or punishment if the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country.

The Federal Court has grappled with how to distinguish between personalized and generalized risk.

Proophete

As noted in Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC 331, the difficulty in analyzing personalized risk in situations of generalized human rights violations, civil war, and failed states lies in determining the dividing line between a risk that is “personalized” and one that is “general”.  What, for example, is the risk to an individual who has been targeted in the past and who may be targeted in the future but whose risk situation is similar to a segment of the larger population?  In Prophète, for example, Madam Justice Tremblay-Lamer, after much deliberation, determined that s. 97 can be interpreted to include a sub-group within the larger one that faces an even more acute risk.

Definition of Generliazed

Further complicating the issue is that there are varying definitions of what the word “generalized” means.  In Osorio v Canada (Minister of Citizenship and Immigration),

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Business Visitor or Work Permit Required?

7th Oct 2011 Comments Off on Business Visitor or Work Permit Required?

Last updated on March 30th, 2021

Last Updated on March 30, 2021 by Steven Meurrens

The Business Visitor category facilitates the entry of a broad range of individuals who intend to enter Canada to engage in business or trade activities without entering the Canadian labour market. Business Visitors do not need work permits, pursuant to section 186(a) of Canada’s Immigration and Refugee Protection Regulations (“IRPR“), which states that:

No permit required

186. A foreign national may work in Canada without a work permit

(a) as a business visitor to Canada within the meaning of section 187;

IRPR s. 187, meanwhile, states that:

Business visitors

187. (1) For the purposes of paragraph 186(a), a business visitor to Canada is a foreign national who is described in subsection (2) or who seeks to engage in international business activities in Canada without directly entering the Canadian labour market.

Specific cases

(2) The following foreign nationals are business visitors:

(a) foreign nationals purchasing Canadian goods or services for a foreign business or government, or receiving training or familiarization in respect of such goods or services;

(b) foreign nationals receiving or giving training within a Canadian parent or subsidiary of the corporation that employs them outside Canada, if any production of goods or services that results from the training is incidental; and

(c) foreign nationals representing a foreign business or government for the purpose of selling goods for that business or government, if the foreign national is not engaged in making sales to the general public in Canada.

Factors

(3) For the purpose of subsection (1), a foreign national seeks to engage in international business activities in Canada without directly entering the Canadian labour market only if

(a) the primary source of remuneration for the business activities is outside Canada;

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