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. One of the most difficult issues to resolve when an individual is immigrating to Canada are allegations from the Government of Canada about misrepresentation.
Section 40(1)(a) of Canada’s Immigration and Refugee Protection Act states provides that a permanent resident or a foreign national is inadmissible to Canada for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of Canadian immigration law.
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.
Intention
A significant issue that often arises is whether or not a misrepresentation has to be intentional. The jurisprudence consistently provides that in order for a finding of misrepresentation to be made an applicant does not have to intend to misrepresent themselves: Chen v. Canada, 2005 FC 678. IRCC officers do, however, have to be satisfied that the person was subjectively aware of the information that they allegedly misrepresented, and that a party cannot be faulted for failing to impart information which is unknown to him/her: Jean-Jacques v. Canada, 2005 FC 104.
But what about where there is an innocent mistake or misunderstanding? If an officer is satisfied that an individual has innocently misrepresenting something, can the fact that the misrepresentation was innocently made be an exception to misrepresentation?
In Berlin v. Canada (2011), the Court explored in detail whether such an exception exists. There, an immigration officer determined that Mr. B had committed misrepresentation because Mr. B failed to declare his relationship as the adoptive father of two children from a previous marriage. When the immigration officer asked why he did not declare them, Mr. B indicated that he did not believe them to be dependants for the purpose of Canadian immigration purposes.
In analysing the issue of whether innocent mistake was an exception to misrepresentation, the Court first noted that the Immigration, Refugees and Citizenship Canada’s Enforcement Manual seemed to provide for such an exception. The relevant sections include ENF02 s. 9.3, which informs immigration officers that:
It must be recognised that honest errors and misunderstandings sometimes occur in completing application forms and responding to questions. While in many cases it may be argued that a misrepresentation has technically been made, reasonableness and fairness are to be applied in assessing these situations.
As well, ENF02 s. 9.10 states that the following situation would not generally constitute misrepresentation:
It must be recognised that honest errors and misunderstandings sometimes occur in completing application forms and responding to questions. While in many cases it may be argued that a misrepresentation has technically been made, reasonableness and fairness are to be applied in assessing these situations.
The Court also cited numerous other decisions which support the notion of an exception for innocent misrepresentation, including Medel v. Canada (MEI), [1990] 2 FC 345, Baro v. Canada (MCI), 2007 FC 1299, Merion-Borrego v. Canada (MCI), 2010 FC 631, and Koo v. Canada (MCI), 2008 FC 931.
Ultimately, the Court in Berlin affirmed that there is an exception for innocent mistake which may excuse what might otherwise appear to be a deliberate misrepresentation. As well, in considering whether a misrepresentation is innocent or deliberate, an almost determinative factor will be whether or not the accurate information was presented in either supporting documentation or other forms. In Berlin, for example, the applicant had included his adoptive children in a Personal Information Form. The Court held that this strongly suggested that his failure to include it in his application form was indeed an innocent misrepresentation.
In Punia v. Canada, the Court reiterated that it may be unreasonable for a visa officer to determinate that an applicant has misrepresented themselves if the officer is, or ought to be, aware that the person is confused but trying their best to answer questions. The Court stated that:
In my view then, the Bangalore Decision for the Female Applicant is procedurally unfair and unreasonable. It is procedurally unfair because the Visa Officer knew he was dealing with a self-represented applicant who could not complete the forms correctly, who made it clear she was not sure that she had given him what he wanted, and who suggested he check the record. The Visa Officer could not know that the Female Applicant did not understand that the 2016 CEC permanent residence refusal constituted a visa refusal, but he did know that the Female Applicant was confused and was seeking to clarify with him whether the record contained any other refusals that she needed to address. He also knew that the Female Applicant had lived in Canada for a considerable period of time, had made numerous applications for visas and permits that were granted and had been totally honest with Canadian authorities throughout. In this context, procedural fairness required that the Visa Officer ask the Female Applicant specifically to address the 2016 CEC permanent residence refusal before making a decision, and to consider the obviously innocent mature of the Applicants’ mistakes.
Subjective 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; 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.
Hence, there is an exception for exceptional circumstances where an applicant honestly and reasonably believed that they were not misrepresentating a material fact.
An Overview of the Innocent Mistake Defense
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.
In Appiah v Canada (Citizenship and Immigration), 2018 FC 1043 [Appiah], Mr. Justice Martineau stated:
The innocent misrepresentation exception is narrow and shall only excuse withholding material information in extraordinary circumstances in which the Applicant honestly and reasonably believed he was not misrepresenting a material fact, knowledge of the misrepresentation was beyond the Applicant’s control, and the Applicant was unaware of the misrepresentation (Wang at paragraph 17; Li v Canada (Immigration, Refugees and Citizenship), 2018 FC 87 at paragraph 22; Medel v Canada (Minister of Employment and Immigration), [1990] 2 FC 345). Some cases have applied the exception if the information given in error could be corrected by reviewing other documents submitted as part of the application, suggesting that there was no intention to mislead: Karunaratna v Canada (Citizenship and Immigration), 2014 FC 421 at paragraph 16; Berlin v Canada (Citizenship and Immigration), 2011 FC 1117 at paragraphs 18‑20. Courts have not allowed this exception where the Applicant knew about the information, but contended that he honestly and reasonably did not know it was material to the application; such information is within the Applicant’s control and it is the Applicant’s duty to accurately complete the application: Goburdhun v Canada (Citizenship and Immigration), 2013 FC 971 at paragraphs 31‑34; Diwalpitiye v Canada (Citizenship and Immigration), 2012 FC 885; Oloumi at paragraph 39; Baro v Canada (Citizenship and Immigration), 2007 FC 1299 at paragraph 18; Smith v Canada (Citizenship and Immigration), 2018 FC 1020 at paragraph 10.
As the Justice Pamel noted in Sbayti v. Canada (Citizenship and Immigration), 2019 FC 1296, the innocent mistake defense to misrepresentation will also apply to reasonable misunderstandings of foreign law. In Park v. Canada (Public Safety and Emergency Preparedness), 2021 FC 786, Justice Southcott found that the innocent mistake defence could apply to someone who reasonably believed that they had never been charged or convicted of a criminal offence. In Moon v. Canada (Citizenship and Immigration), 2019 FC 1575, Justice Boswell stated that it also applies to situations where an immigration consultant submits an application on behalf of someone without their knowledge, and when the individual discovers it they try to rectify the situation. In Badmus v. Canada (Citizenship and Immigration), 2022 FC 1031, it was also found to apply where someone submits an application without their knowledge and the person subsequently applies for a work permit. Finally, in Pandher v. Canada (Citizenship and Immigration), 2022 FC 687, Madam Justice Strickland determined that it can apply where a representative changes an applicant’s application after they have already signed it.
What Does Not Qualify Under the Innocent Mistake Defence
In Wang v. Canada (Citizenship and Immigration), 2023 FC 62, Justice Régimbald affirmed that the innocent mistake defense will generally not apply to mere inadvertence, errors, or inattention in the completion of forms.
In Sbayti v. Canada (Citizenship and Immigration), 2019 FC 1296, Justice Pamel stated the following as examples of what would not qualify as an innocent mistake. He wrote:
This is not a case where the Applicant, following questioning by a visa officer, looked to correct a misrepresentation which he had previously adopted to his benefit (see for example Khan).
This is not a case where the Applicant is pleading ignorance of a fraud that forms part of his application record, possibly even without the Applicant’s knowledge (see for example Oloumi; Agapi).
This is not a case where the Applicant was looking to plead “innocent mistake” on the basis that he forgot about the events between 2011 and 2013 (see for example Appiah), or that he misread the question on the visa application (see for example Alalami v Canada (Citizenship and Immigration), 2018 FC 328).
This is not a case where the Applicant simply forgot about events that he was specifically prompted to disclose, then later requested that his oversight be forgiven (see for example Diwalpitiye v Canada (Citizenship and Immigration) 2012 FC 885; Goburdhun v Canada (Citizenship and Immigration), 2013 FC 971).
This is also not a case where the Applicant did not disclose past illegalities because he thought they had become irrelevant (see for example Smith v Canada (Citizenship and Immigration), 2018 FC 1020).
Common-Law Relationship vs. Signal
In Kaur v. Canada (Citizenship and Immigration), 2024 FC 416, Madam Justice Turley ruled that if an individual in a common-law relationship states that they were signal and has lived in Canada for a long while then they may not be able to satisfy the test that their belief that they were signal was objectively reasonable.
Consequence of Bar
In Sadiqa v. Canada (Citizenship and Immigration), 2024 FC 931, Justice Ahmed ruled that in determining whether the innocent mistake defense applies, as well as materiality, officers may need to demonstrate that they considered the consequences of a misrepresentation.
Previous Arrests
In Pereira v. Canada (Citizenship and Immigration), 2023 FC 994, Madam Justice Tsimberis wrote that the innocent mistake defense to misrepresentation does not apply to someone who did not disclose an arrest because they were neither incarcerated nor charged. Madam Justice Tsimberis wrote:
In this case, the Applicant did not fulfill her duty of candour and provide complete, honest and truthful information (Wang at para 16). Even if the Applicant did not believe she was arrested or was not sure whether she was arrested, she should have disclosed that she had been taken into custody and the circumstances related thereto. The circumstances of her being taken into custody included her being put into a police vehicle, brought to and held at the police station, transferred to the custody of the CBSA where she was questioned, fingerprinted and photos were taken, and then released by the CBSA with reporting conditions. The Applicant should have disclosed these circumstances, or at least a part thereof, in some way in her initial answer to the relevant question in the form. Given the complete withholding of information in this regard, it was not unreasonable for the officer to raise this as a material misrepresentation.
As an aside, in R. v. Whitfield the Supreme Court of Canada held that the definition of arrest is:
631. MEANING OF ARREST. Arrest consists of the actual seizure or touching of a person’s body with a view to his detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer. An arrest may be made either with or without a warrant.
The definition of arrest has been accepted in subsequent cases. In its study, Arrest (Working Paper 41, 1985) at p.31, the Law Reform Commission of Canada, supports a definition in which “physical restraint, or submission to physical restraint, is the essence of arrest and this concept is virtually synonymous with ‘detention’, ‘custody’, or ‘imprisonment’.
Summary
Gill v Canada (Citizenship and Immigration), 2021 FC 1441, cited with approval in Markar, provides a helpful summary of what is becomming a split in the jurisprudence regarding the innocent mistake defense to misrepresentation. It states:
There appear to be two strains of case law from this Court regarding innocent misrepresentations as an exception to inadmissibility under paragraph 40(1)(a). In one, the Court has concluded there are effectively two requirements for an innocent misrepresentation: (i) that subjectively the person honestly believes they are not making a misrepresentation; and (ii) that objectively it was reasonable on the facts that the person believed they were not making a misrepresentation. This approach can be seen in cases such as Baro v Canada (Citizenship and Immigration), 2007 FC 1299 at para 18; Karunaratna v Canada (Citizenship and Immigration), 2014 FC 421 at para 14; Punia at paras 66–68; Singh Dhatt at para 27; Canada (Citizenship and Immigration) v Robinsion, 2018 FC 159 at para 6; Alalami v Canada (Citizenship and Immigration), 2018 FC 328 at paras 15–16; and Alkhaldi v Canada (Citizenship and Immigration), 2019 FC 584 at para 19.
In the other, an additional requirement has been adopted which considerably narrows the availability of the exception, namely that “knowledge of the misrepresentation was beyond the applicant’s control.” This additional requirement appears to stem from Oloumi v Canada (Citizenship and Immigration), 2012 FC 428 at para 39, drawing on language from Mohammed v Canada (Minister of Citizenship & Immigration), 1997 CanLII 16384 (FC), [1997] 3 FC 299 at para 41. It was then adopted in Justice Strickland’s decision in Goburdhun, a decision which has been frequently applied: see, e.g., Suri v Canada (Citizenship and Immigration), 2016 FC 589 at para 20; Brar v Canada (Citizenship and Immigration), 2016 FC 542 at para 11; Tuiran at paras 27, 30; Appiah at para 18.
Mr. Gill argues that the “beyond the applicant’s control” requirement is inconsistent with cases such as Punia, Berlin and Karunaratna, in which the undisclosed information was clearly known to the applicant, but the inadmissibility findings were still found unreasonable in light of the innocent misrepresentation exception: Punia at paras 68–70; Berlin at paras 2, 19–22; Karunaratna at paras 5–6, 16. I agree that these cases clearly did not impose a “beyond the applicant’s control” requirement. I also question whether this requirement is consistent with the very purpose behind the exception, namely to recognize that mistakes can happen and “honest errors” can occur. However, the preponderance of this Court’s case law, particularly after Justice Strickland’s 2013 decision in Goburdhun, appears to include this requirement.
In Kaur v. Canada (Citizenship and Immigration), 2023 FC 1454, the Chief Justice found that the two approaches are not necessarily contradictory, and that the “beyond the applicant’s control” test is implicitly a part of the test for whether a misrepresentation finding was objectively reasonable.