Last Updated on June 13, 2017 by Steven Meurrens
The following is an article that I wrote for The Canadian Immigrant magazine.
Prospective immigrants committing misrepresentation in their applications is becoming an increasingly big problem in Canada. In Vancouver, an individual was recently sentenced to eight years imprisonment for helping around 1,500 people lie in everything from permanent residency applications to permanent resident card renewals, including the use of fake passport stamps.
As well, thousands of Canadians across the country are embroiled in citizenship revocation proceedings.
Meanwhile, increased information sharing between government agencies, and improvements in the collection and analysis of data are resulting in a huge increase in immigration officials detecting everything from little white lies to complex fraud.
What is misrepresentation?
Canadian immigration officials interpret the definition of misrepresentation very broadly as the goal is to help maintain the integrity of Canada’s immigration process. The law is clear that the onus is placed on the prospective immigrant (or visitor, worker or student) to ensure the completeness and accuracy of their application.
Not all misstatements or omissions will result in an individual committing misrepresentation. The lie has to be material. In other words, the misstatement or omissions need to be ones that could affect whether someone is eligible for the immigration program that they are applying to, or whether they are inadmissible to Canada.
For example, even though being charged with a criminal offence that is ultimately dismissed does not typically render one inadmissible to Canada, the failure to disclose a dismissed charge would be considered misrepresentation. Not disclosing the charge prevents officials with the opportunity to confirm if and why the charge was, in fact, dismissed. On the other hand, mistyping a postal code is unlikely to result in an immigration official determining that someone committed misrepresentation.
Third parties at fault?
Misrepresentation includes lies and omissions made by other parties, including immigration consultants, lawyers and employers, even if made without the knowledge of the prospective immigrant.
Indeed, a surprisingly common scenario that can result in misrepresentation occurs when prospective immigrants sign blank forms, trust their immigration representative to complete their application honestly, and then do not review their application before it is sent.
While there is an “innocent misrepresentation” exception, it applies only to truly extraordinary circumstances in which a prospective immigrant honestly and reasonably believes that they were not misrepresenting a material fact and that the knowledge of it was beyond their control. An example would be where someone does not declare a child that they did not know about.
The consequences for an individual caught committing misrepresentation are severe. In addition to losing their status in Canada, permanent residents and foreign nationals are both subject to five-year bans on entering Canada. During the duration of this ban, they are prohibited from submitting a new permanent residence application.
In addition to being severe, the consequences can also appear unjust. Consider the case of Nelly Cedana, a former live-in caregiver whose 2016 judicial review application of a removal order against her was unsuccessful. Cedana had come to Canada in 2009 to work as a live-in caregiver. In 2010, her employers, a teacher and a lawyer, terminated her employment. For unknown reasons, her former employers suggested to her that she continue to live with them and that she pay them $1,000 in cash per month. In exchange, they would issue her a cheque for the same amount and they would pretend that she still worked for them. They even issued fake T4 slips to her, claiming the recycled cash as employment income paid to her.
When the fraud was discovered, the Canada Border Services Agency successfully sought to have Cedana removed from Canada for misrepresentation. Her counsel desperately argued that she was a vulnerable person who had been victimized and exploited by her employers, but was unsuccessful. The Federal Court noted that while it was the employers who proposed the illegal route to immigration, Cedana had chosen to accept it.
After her decision, Madam Justice Elliot noted that it would shake public confidence in the administration of Canada’s immigration system if Nelly was removed from Canada yet the government took no actions against her employers, and that the consequences for violating Canada’s immigration laws should not fall solely upon those who lack Canadian citizenship while professionals occupying positions of trust are spared any scrutiny of their actions.
However, anyone who spends a considerable amount of time talking with prospective immigrants, especially those in vulnerable circumstances, will know that the brunt force of the enforcement of Canada’s immigration laws will typically fall on the prospective immigrant, while the consequences for unscrupulous employers or consultants will be minimal, if any.
As unjust as this seems, the reality is that everyone completing an immigration application typically knows what is true and what isn’t. As such, no matter how tempting it is to lie or how powerful the person who is recommending misrepresentation may be, honesty is always the best policy.
As well, it should also reassure many that immigration officials typically provide an applicant the chance to respond to the allegation that they have committed misrepresentation. Obviously, applicants who have been truthful should take advantage of this opportunity. Applicants who simply made a mistake should also respond and explain the mistake. Immigration officers are humans, too, and they often understand that mistakes and misunderstandings can occur.