Misrepresentation in immigration applications and its consequences

Credit to Author: Steven Meurrens| Date: Tue, 12 Jul 2022 21:26:55 +0000

Canadian immigration law requires that applicants be honest in their applications.  The need for people to be thorough and truthful has perhaps never been more imperative than ever, as Immigration, Refugees and Citizenship Canada (IRCC) is becoming increasingly effective and strict in determining that people have committed misrepresentation, and barring them from entering Canada.

Indeed, from 2015–2019 the number of temporary residence applications refused for misrepresentation increased from 6,673 to 26,982.

From 2014 to January-April of 2019 (the most recent period for which I have statistics), the percentage of temporary resident applications (excluding Electronic Travel Authorizations) refused for misrepresentation increased from 0.2% to 0.8%. This means that almost 1% of temporary residence applications are refused for this reason.

This number is only likely to increase due to increased information sharing between Canada and other countries, as well as the use of artificial intelligence to both detect misrepresentation and streamline refusals.

What is misrepresentation?

Section 40 of Canada’s Immigration and Refugee Protection Act, the law governing Canadian immigration law, provides that a permanent resident or a foreign national is inadmissible to Canada 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 Canada’s immigration programs.

The consequence of being inadmissible to Canada for misrepresentation is a five-year ban on entering Canada. Someone who is already inside Canada and determined to be inadmissible to Canada will be removed from the country.  During the five-year period the person cannot apply for permanent residency.

The Federal Court of Canada has articulated several key principles about the law of misrepresentation in the Canadian immigration context.

• Officers are to interpret misrepresentation broadly in order to ensure that applicants are honest.

• The onus is on applicants to ensure the completeness and accuracy of their application.

• Subject to limited exceptions, a person can be inadmissible for misrepresentation even if the misstatement is made by another party, including an immigration lawyer or consultant.

• As a person is responsible for the content of an application that they sign an applicant’s belief that they were not misrepresenting a material fact is not reasonable where they fail to review their application and ensure the completeness and truthfulness of it before signing.

• A misrepresentation does not need to be determinative or decisive. It is material if it is important enough to affect the process. For example, while a dismissed charge does not lead to someone being criminally inadmissible, the failure of an applicant to disclose a dismissed charge is misrepresentation.

• An applicant may not take advantage of the fact that the misrepresentation is caught by a visa officer before a final decision is made.

Increased areas of misrepresentation

Based on a review of Federal Court jurisprudence, there appear to be three areas where misrepresentation is increasingly being detected and becoming an issue.

The first involves concerns about marriage fraud in the open spousal work permit program.  Indeed, documents obtained through an Access to Information Act show that the Canadian visa office in New Delhi appears to be pursuing misrepresentation as a policy of deterrence in these cases such that if a visa officer determines that a marriage is not bona fide then a misrepresentation finding automatically follows. Applicants are accordingly advised to include as much supporting documentation as possible in their applications to prove their relationship is genuine.

The second is where immigration lawyers or consultants misstate something in an application that they are preparing for a client, and the client does not review the application before signing. It is accordingly imperative that applicants carefully review their applications.

The third, and possibly the largest cause of the increase in misrepresentation findings, is the applicants not disclosing previous visa refusals to both Canada and other countries.  The most common is omitting a United States visa refusal from an application.  Given increased information sharing between Canada and other countries, it is imperative that applicants carefully reflect upon whether they have ever had any visa refusals to any country.

As has always been the case, the best way to ensure that an application is processed smoothly and that there are no concerns about misrepresentation is to review every question and to be thorough.

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