Last updated on August 23rd, 2021
Last Updated on August 23, 2021 by Steven Meurrens
Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding a material fact relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws.
The general consequence of misrepresenting is a five-year ban from entering Canada.
Canada is very strict on misrepresentation. In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal. Mr. Bundhel would accordingly not have been criminally inadmissible to Canada. Because of this, he put on his immigration forms that he had never been charged or arrested. When it discovered thathehad been previously charged, what is now Immigration, Refugees and Citizenship Canada wrote to him and provided him with an opportunity to explain why he misrepresented. After the immigration officer reviewed Mr. Bundhel’s explanation that it was an innocent mistake, the officer refused the application, and declared the person inadmissible to Canada for misrepresentation. The Court wrote (citations removed):
Mr. Bundhel’s complaint that the Officer should have considered the fact that he owned-up to the problem at the first available opportunity is also unjustified. Mr. Bundhel only acknowledged the true facts when he was confronted with them. This is not equivalent to a situation where an applicant owns-up to a mistake before it is brought to light or where the file already contains the correct information. In such a case, a favourable inference is more likely to be drawn because it is suggestive of an innocent mistake and not a wilful omission. The same point is made in Uppal v Canada (Minister of Citizenship and Immigration), where Justice Anne Mactavish stated the following:
The misrepresentations in this case were made in the context of the applications for permanent residence that were under consideration by the officer. In such circumstances, the fact that the misrepresentations were disclosed by the applicants prior to a final decision having actually been taken in relation to their applications does not assist them. Indeed, this Court specifically rejected this argument in Khan v. Canada (Minister of Citizenship & Immigration)
That is, the Court held in Khan that such an interpretation would lead to situations where individuals could knowingly misrepresent their circumstances, but nevertheless escape an inadmissibility finding, as long as they disclosed the misrepresentation right before a decision was made. Not only would such an interpretation encourage the abuse of the Act, it also ignores the requirement to provide truthful information in applications under the Act.
The Court’s concerns in Khan are amply illustrated by the facts of this case, where the applicants only came forward with their “clarification” once they knew that their lies were about to be uncovered through genetic testing.
As a consequence, I am satisfied that the officer’s conclusion that the applicants had misrepresented material facts relating to a relevant matter that could have induced an error in the administration of the Act was one that was reasonably open to him on the record before him.
The fact is, our system of immigration control relies heavily on the truthfulness of those who apply to come here. Those who misrepresent their histories or withhold material information with a view to enhancing their chances for entry are undeserving of special consideration. The consequences for Mr. Bundhel are undoubtedly serious but they result from his failure to disclose material information. The integrity of Canada’s control over its borders demands nothing less than scrupulous honesty from applicants and the rigid enforcement of that obligation. The Officer’s decision fulfills this principle and is in all respects reasonable.
There are several important things to understand about misrepresentation:
- It is necessary that the misrepresentation be material. A simple inaccuracy is insufficient to result in a misrepresentation finding. For example, if an applicant accurately states their duties, location of employment, title, etc. but gets the legal name of the employer wrong it may not result in a misrepresentation finding, as the Federal Court of Canada noted in Song v. Canada (Citizenship and Immigration). As well, as the Federal Court noted in Lin v. Canada, misstating one’s employment history may not be a material misrepresentation in a provincial nominee application.
- If someone who is sponsoring a foreign national makes a misrepresentation, then it is the foreign national who will be found to be inadmissible. In 2018, the Federal Court of Canada in Li v. Canada determined that the Canada Border Services Agency can in such circumstances commence removal proceedings against the Sponsor, a decision which is as of writing under appeal.
- It is important to note that the rule against misrepresentation applies to permanent residents as well as foreign nationals. A permanent resident can be removed from Canada and/or lose their status if they commit misrepresentation.
- If someone hire a shady representative that lies on the forms, that person cannot use their representative as an excuse. It is applicant who will be punished. Indeed, as the Federal Court of Canada found in Haghighat v. Canada (Citizenship and Immigration), 2021 FC 598, even if the representative is convicted of fraud, and even if the misrepresentation is the consultant providing their client with a fake IRCC passport request letter, the applicant can be inadmissible for misrepresentation.
- Once Immigration, Refugees and Citizenship Canada makes an allegation of misrepresentation, it is insufficient for the applicant to simply withdraw the application. As the Federal Court noted in Zhang v. Canada, 2015 FC 463, “such an approach would encourage claimants to misrepresent material information in the expectation their visa applications could simply be withdrawn if the deceit was later uncovered.”
- For IRCC to make a misrepresentation finding it is necessary that the misrepresentation actually have had the possibility to cause an officer to reach an erroneous decision, and induce an error in the administration of the Immigration and Refugee Protection Act. In Murugan v. Canada (Citizenship and Immigration Canada), 2015 FC 547 the Federal Court found that omitting a visitor visa refusal from a permanent residence application could not have resulted in an error in the administration of the Act and therefore did not constitute a misrepresentation.
- If IRCC believes that there is a discrepancy between what an applicant says at a port of entry interview and what was in the application then procedural fairness will at a minimum require IRCC to advise the applicant of the general concern, and, as was the case in Guerrero v. Canada (Citizenship and Immigration Canada), even provide the applicant with the exact statements that were allegedly said at the port of entry. The Federal Court found a similar duty regarding inconsistent statements at spousal sponsorship interviews in Huang v. Canada (Citizenship and Immigration). However, there is no obligation to specifically state that an officer is concerned that there is a misrepresentation. As the Federal Court found in Narang v. Canada (Citizenship and Immigration), simply asking for comment on an inconsistency is sufficient.
- There is an important distinction between insufficiency of evidence and misrepresentation. While an officer can often find that there is insufficient evidence to demonstrate that an applicant meets the requirements of immigration, this is distinct from the test for misrepresentation, as the Federal Court found in Seraj v. Camada (Citizenship and Immigration).
- A visa application must be considered in its totality. It cannot be compartmentalized, particularly when making a finding of misrepresentation carries such serious consequences. In other words, where there is a misrepresentation in one portion of an application, but the truth can be found in another part, then a finding of misrepresentation may be inappropriate, as was the case in Lamsen v. Canada (Citizenship and Immigration).
- Officers must be vigilant that the misrepresentation findings are sound, given their serious and lasting consequences.
- Typically, although not always, it is insufficient for an officer to assign little weight to documentary evidence simply by stating that the “easy availability of inauthentic documents” in a country.
- The materiality analysis is not limited to a particular point in time in the processing of the application.
- Pursuant to the Federal Court’s decision in Patel v. Canada (Citizenship and Immigration), it is misrepresentation to not disclose a United States visa refusal in a temporary residence application when the form asks if the applicant has had any previous visa refusals to any country. As well, in Quach v. Canada (Citizenship and Immigration), 2021 FC 855, the Federal Court affirmed that a United States visa cancellation that results in a bar on entering the United States is similar enough to a refusal that the failure to disclose it can constitute misrepresentation.
- As per the Federal Court’s decision in Canada (Citizenship and Immigration) v. Singh Sidhu, 2018 FC 306, a permanent resident inadmissible for indirectly representing a material fact if they are landed as a dependent of a principal applicant who misrepresented material facts on his application for landing. Pursuant to the Federal Court of Appeal decision in Sidhu v. Canada (Citizenship and Immigration), dependants may, depending on the circumstances, also have a duty of candour to disclose their parents’ or spouse’s misrepresentation.
- The failure of an applicant to accurately complete their travel history in a permanent residence application can constitute misrepresentation.
To conclude, a few Federal Court decisions have cited paragraph 28 of (Goburdhun v Canada (Minister of Citizenship and Immigration), 2013 FC 971, to provide a summary on how Canada’s misrepresentation inadmissibility works. I have reproduced it below, with citations removed for ease of reading:
Section 40 is to be given a broad interpretation in order to promote its underlying purpose. Section 40 is broadly worded to encompasses misrepresentations even if made by another party, including an immigration consultant, without the knowledge of the applicant.
The exception to this rule is narrow and applies only to truly extraordinary circumstances where an applicant honestly and reasonably believed that they were not misrepresenting a material fact and knowledge of the misrepresentation was beyond the applicant’s control.
The objective of section 40 is to deter misrepresentation and maintain the integrity of the immigration process. To accomplish this, the onus is placed on the applicant to ensure the completeness and accuracy of their application. An applicant has a duty of candour to provide complete, honest and truthful information in every manner when applying for entry into Canada. As the applicant is responsible for the content of an application which they sign, the applicant’s belief that he or she was not misrepresenting a material fact is not reasonable where they fail to review their application and ensure the completeness and veracity of the document before signing it.
In determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose. A misrepresentation need not be decisive or determinative. It is material if it is important enough to affect the process.
An applicant may not take advantage of the fact that the misrepresentation is caught by the immigration authorities before the final assessment of the application. The materiality analysis is not limited to a particular point in time in the processing of the application.
In R. v. Chisholm, 2018 ONCJ 479, the Ontario Court of Justice held that criminal misrepresentation is more narrow than civil. Justice Rahman stated:
Section 126 does not punish any misrepresentation. It only criminalizes misrepresentations that have a consequence, or potential consequence. The consequence is an error, or a misapplication of the Act. Had Parliament wished to criminalize every misrepresentation, or all misrepresentations that would obstruct an inquiry, it could have done so. For example, s. 153 of the Customs Act makes it an offence “to make, or participate in, assent to or acquiesce in the making of, false or deceptive statements in a statement or answer made orally or in writing pursuant to this Act or the regulations.” That provision requires no consequence in making the false statement.
I cannot accept Mr. Tsai’s submission that the Federal Court cases interpreting s. 40 of IRPA support the Crown’s position.While those cases appear to take a broad view of misrepresentations that could induce errors in the administration of the Act, they do not support an interpretation of s. 126 that would criminalize inconsequential errors. In this case, the Crown’s own evidence established that whether someone has a friend or relative in Canada is immaterial to their admissibility as a visitor and in any event would not affect their admissibility as a visitor. That is because Officer Blaszkiewicz’s evidence does not support the Crown’s submission that misrepresenting the relationship could have induced an error in the administration of the Act.