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?

In essence, the Federal Court of Canada has determined that misrepresentation is similar to a strict liability offence, in which there is a “reasonableness” (or “due diligence”) defence.

An Overview of the Rule

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; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No.1495 (F.C.T.D.) (QL). An exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information.

Accordingly, it is only in exceptional cases where an applicant can demonstrate (1) that he honestly and reasonably believed that he was not withholding material information, and (2) where “the knowledge of which was beyond his control”, that an applicant may be able to take advantage of a “reasonably innocent mistake” defence to misrepresentation.

It is important to note that the first part of the test consists of two components.  The person must have subjectively believed that they were not withholding material information and the belief must have been reasonable.  Hence, as Justice Zinn noted in Canada (Citizenship and Immigration) v Robinsion, 2018 FC 159 :

Where a person is found to be credible and he or she testifies that the belief was honestly held, the first aspect of the test – the subjective aspect – has been satisfied. However, credibility does not address the reasonableness of the belief – it does not address the objective aspect of the test which is to be determined based on all the facts before the decision-maker. I agree with the Minister that the ID gave no reasons as to why it found on the evidence before it that the belief was reasonable.