Last updated on July 25th, 2021
Last Updated on July 25, 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. An issue that often arises is where an applicant mistates or omits information in their visa application, but the information is readily available to a visa officer. Koo v. Canada Koo v. Canada (Minister of Citizenship and Immigration), 2008 FC 931 is the most frequently cited case on this issue. There, an applicant failed to disclose that he had previously applied for permanent residence, and that the application had been refused. Justice Montigny stated that:
I shall now turn to the alleged misrepresentation with respect to the applicant’s previous application for permanent residence. The error occurred when the applicant checked off the “yes” box to the question whether he had “previously sought refugee status in Canada or applied for a Canadian immigrant or permanent resident visa or visitor or temporary resident visa”, but checked off the “no” box to the following question as to whether he had been refused such a status. The applicant has stated that this was an oversight on both the part of himself and his former representative and was in no way intentional. Further, when the applicant was asked at interview about whether he had previously submitted any immigration applications, the CAIPS notes reflect that he advised the officer that he had previously submitted an application for permanent residence in Canada, which was refused in 1995.
Not only do the CAIPS notes indicate that the existence of the applicant’s previous application for permanent residence was known to Citizenship and Immigration despite the applicant’s change of name, but they also demonstrate that the applicant had previously disclosed his 1995 application for permanent residence when applying for a work permit. The applicant’s previous disclosure supports the applicant’s claim that he misread the question on the application form and inadvertently ticked off the wrong box.
In Ali v. Canada (Citizenship and Immigration), 2021 FC 579, Justice Southcott, applying Koo set aside a misrepresentation finding in which an applicant had disclosed a United States visa refusal and that he had been ordered to leave the United States but had not disclosed two subsequent visa refusals. He wrote:
Perhaps there are steps or procedures that would have been followed if the visa officer had known about the visa waiver refusals in addition to the other information disclosed by the Applicant. However, the Decision provides no explanation of what those procedures would be or any analysis of that question.
A similar principle arises in Alves v. Canada (Citizenship and Immigration), 2021 FC 716. There, an applicant disclosed her most recent United States visa refusal, but not the removal from the United States that had occurred some years prior. In finding that this did not constitute misrepresentation, Justice Manson stated:
Further, it is unclear how the Officer came to the conclusion that the misrepresentation was material. Notably, whether the misrepresentation was sufficiently important to affect the process, foreclosing or averting further inquiries (Oloumi at para 25; Li v Canada (Immigration, Refugees and Citizenship), 2018 FC 87 at para 13). The Applicant answered “yes” to the single background declaration question, which asks whether the Applicant has adverse immigration history and disclosed her most recent refusal from the United States, which is connected to the 2015 events in question. It appears in such a case that the disclosure in question prompted the appropriate inquiries, as anticipated by the Applicant. The evidence does not justify the Officer’s finding that the misrepresentation was material in this case.