Misrepresentation and the Canadian Immigration Process
Written by Jeremiah Eastman
Many people applying for visas to Canada to study, work, or visit are totally unaware of the pitfalls that may lie ahead in the processing of their visa applications by a Canadian visa office.
I have represented many clients in the Federal Court and before the Immigration and Refugee Board of Canada who have been found to have misrepresented on their visa application forms.
When one thinks of misrepresentation, deliberately lying usually comes to mind. For instance, if you are asked on a visa application to list your education history and you state that you have a M.B.A., when in fact you don’t. This is a misrepresentation.
But you can also misrepresent by mistakenly withholding information on a visa application. If a visa application asks you, say, to list all of your addresses for the past 5 years, and you forget to list one. This is also a misrepresentation, but one of omission, because you withheld information from the visa office.
Section 40 of the Immigration and Refugee Protection Act, the governing law for immigration matters in Canada, provides as follows:
40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation
- (a) 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 this Act;
- (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;
- (c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or
- (d) on ceasing to be a citizen under
- (i) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force,
- (ii) subsection 10(1) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act, or
- (iii) subsection 10.1(3) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act.
One question on visa applications that catches applicants
Through the years, I have found one question in particular on visa application forms that has led to countless visa applicants being found to have misrepresented. That question reads:
Have you ever been refused admission to, or ordered to leave Canada or any other country?
A search of the Federal Court of Canada website for misrepresentation cases reveals that indeed this question is the basis of many misrepresentation findings by Canadian visa offices.
Why is this so? Well, it is quite simple, visa applicants either never read the question or did read the question, but not carefully.
From experience, I can say that most people read this question and understand it to be asking if they have ever been refused admission to, or ordered to leave Canada. Full stop. They neglect to answer the rest of the question “or any other country”. For example, a visa applicant reading this question may answer, “No” because they have never even applied to come to Canada before. However, they have applied to some other country, say the United States, and their U.S. visa application was refused. By answering “No” to this question, then, they have misrepresented.
Section 40 of the Immigration and Refugee Protection Act also sets out the penalty for misrepresentation, which is as follows:
(2) The following provisions govern subsection (1):
- (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and
- (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.
(3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a).
So, the penalty for misrepresentation is quite severe: 5 years ban from Canada, yet most people applying for visas to Canada are completely oblivious to it, and consequentially are shocked when they receive a Procedural Fairness Letter from a visa office stating that they have concerns that the person has mispresented and if found they did will be banned from Canada for 5 years.
The biggest mistake I have found over the years that people who come to me in a panic with a PFL alleging misrepresentation, is that they did not review their visa application before submitting it to the visa office. This is especially so when their application was prepared by someone else, be it a lawyer, consultant, family member or friend.
I cannot over emphasize the importance of reviewing your application forms and supporting documents line by line to ensure accuracy and truthfulness. Never, never sign your application forms until you have carefully reviewed them. Take your time; do not rush because simply ticking the wrong box can mean lengthy and very costly litigation.
If you do receive a Procedural Fairness Letter alleging that you have misrepresented, contact Eastman Law Office immediately.