The “Innocent Mistake” Defence to Misrepresentation

6th Jun 2012 Comments Off on The “Innocent Mistake” Defence to Misrepresentation

Last updated on December 11th, 2019

Canadian immigration law provides that a person who makes an application must answer truthfully all questions put to them for the purpose of the examination.  Every visa applicant has a duty of candour to provide complete, honest and truthful information when applying for entry to Canada.  Any misrepresentation, whether direct or indirect, that either induces, or could induce, an error by a visa officer in the performance of his or her duties, can result in a person being barred from Canada for five years.

Misrepresentation can occur without an applicant’s knowledge.

In Jiang v Canada(Minister of Citizenship and Immigration), Justice Russell stated that:

With respect to inadmissibility based on misrepresentation, this Court has already given section 40 a broad and robust interpretation. In Khan, above, Justice O’Keefe held that the wording of the Act must be respected and section 40 should be given the broad interpretation that its wording demands. He went on to hold that section 40 applies where an applicant adopts a misrepresentation but then clarifies it prior to a decision. In Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059, this Court held that section 40 applies to an applicant where the misrepresentation was made by another party to the application and the applicant had no knowledge of it. The Court stated that an initial reading of section 40 would not support this interpretation but that the section should be interpreted in this manner to prevent an absurd result.

In Baro v Canada (Minister of Citizenship and Immigration), the Court further held that:

Even an innocent failure to provide material information can result in a finding of inadmissibility;

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