IRCC Refused My Application for Misrepresentation

Misrepresentation in Canadian immigration law is a serious issue that can have severe consequences for applicants, whether the misrepresentation was intentional or accidental. In Canadian immigration law it refers to providing false, misleading, or incomplete information during the application process. This can include information given by the applicant or prepared by a third party, such as a sponsor or immigration consultant - who could induce an error. Misrepresentation can occur in several ways:

• Submission of False Documents: Using counterfeit or fraudulent documents to support your application.
• Omission of Family Members: Failing to disclose all family members.
• Change in Family Status: Not informing the authorities about changes like marriage or childbirth between your application and the grant of permanent residence.
• False Employment Claims: Claiming work experience you do not have.
• Failure to Disclose Visa Refusals: Withholding material facts relating to not mentioning previous refusals for Canadian visas or visas for other countries.

The scope of misrepresentation is broad and encompasses any false representation or withholding of material facts that could influence the outcome of the application. Even if the misrepresentation was unintentional, it could still lead to severe penalties.

Understanding the Consequences of Misrepresentation

Misrepresentation can lead to significant penalties under the Immigration and Refugee Protection Act (IRPA). The consequences can include:

• Inadmissibility: You may be declared inadmissible to Canada for five years, preventing you from applying for permanent residence.
• Removal Orders: You may be issued a removal order, requiring you to leave Canada.
• Impact on Family Members: Your family members can also be affected, potentially being barred from permanent residence for five years.

Even unintentional misrepresentation can result in these consequences, highlighting the importance of providing truthful and complete information throughout the application process. It is important to provide truthful information and avoid potential misrepresentation

Examples of Misrepresentation

The spectrum of misrepresentation is vast, encompassing various scenarios that can impact an individual's admissibility. Some common instances include:

• Submission of False Documents: Presenting counterfeit or fraudulent documents to support the application.
• Omission of Family Members: Failing to mention relatives during the application process.
• Change in Family Status: Not disclosing changes, like marriage or childbirth, between the application date and becoming a permanent resident.
• False Employment Claims: Declaring work experience that one does not possess.
• Failure to Disclose Visa Refusals: Neglecting to mention refusals of visas for Canada or any other country.
• Failure to Disclose Criminality: Failing to mention criminal charges or convictions for Canada or any other country.

Crucially, misrepresentation can be both intentional and accidental. Knowingly concealing material circumstances or even if the misinformation was not willful, individuals may still be deemed inadmissible. This underscores the importance of absolute transparency throughout the application process, ensuring the applicant's knowledge does not amount to an error in the administration.

Procedural Fairness Letter

Before a final decision a foreign national is made on an allegation of misrepresentation, applicants often receive a Procedural Fairness Letter (PFL) in their applications for permanent resident or temporary residence. This letter outlines the concerns of the immigration officer and gives the applicant an opportunity to respond. It's critical to take this letter seriously and provide a detailed response with supporting evidence to address the concerns raised.

Defenses Against Misrepresentation Allegations

If you are accused of misrepresentation, you have two main defenses:

• Proving No Misrepresentation: Provide evidence that the information you submitted was accurate, truthful, and complete. This might involve presenting documents, testimonies, and other relevant materials to the Immigration Appeal Division.
• Humanitarian and Compassionate Grounds: Even if misrepresentation occurred, you can argue that there are sufficient humanitarian and compassionate reasons to allow your appeal. Factors considered include your establishment in Canada, the hardship you would face if removed, and the impact on your family members.

Innocent Misrepresentation

Misrepresentation does not always stem from deliberate deceit. Innocent misrepresentations (indirect misrepresentation) occur when the applicant provides information they believe to be true or fails to disclose information they do not realize is required, indirectly misrepresenting. Even these unintentional errors can lead to severe consequences, such as denial of entry, refusal of applications, loss of status, and removal from Canada.

Courts have addressed innocent misrepresentations in several cases. For example, in the case of Mohammed v. Canada (Minister of Citizenship and Immigration), the court held, the applicant was found inadmissible for not disclosing a change in marital status that occurred after the visa was issued but before landing. The misrepresentation was deemed innocent and unintentional, yet it still led to inadmissibility for committed misrepresentation. Similarly, the case of Medel v. Canada (Minister of Employment and Immigration) established that even if an applicant is unaware of withholding material information, they can still be found inadmissible.

Appealing a Removal Order Based on Misrepresentation

If a removal order has been issued against you due to misrepresentation, you may have the right to appeal to the Immigration Appeal Division. Here are the steps involved in the appeal process:

1. Understanding the Grounds for Appeal: The IAD will consider whether there was indeed a misrepresentation and whether there are humanitarian and compassionate grounds to allow your appeal even if misrepresentation occurred.
2. Preparing for the Appeal: Collect all relevant documents and evidence that support your case. This can include testimonies from employers, family members, and friends, as well as any documentation that demonstrates your establishment in Canada and the potential hardship you would face if removed.
3. Submitting the Appeal: You must file your appeal within 30 days of receiving the removal order. This involves submitting a Notice of Appeal to the IAD, along with any supporting documents.
4. Attending the Hearing: During the hearing, you will have the opportunity to present your case and provide evidence to support your claims. An immigration lawyer can represent you and help articulate your defense effectively.
5. Possible Outcomes: The IAD can decide to:
   • Dismiss the Appeal: Your removal order remains, and you may be removed from Canada.
   • Allow the Appeal: Your removal order is cancelled, and you can remain in Canada.
   • Stay the Removal Order: In rare cases, the IAD may stay the removal order, allowing you to remain in Canada under specific conditions for a defined period.

Application for Leave and for Judicial Review

If the IAD dismisses your appeal, you may seek a judicial review of the decision at the Federal Court. This process involves asking the court to review the decision for any errors in law or procedure . It's a complex process that typically requires the assistance of a legal professional.

How the Federal Court Interprets Misrepresentation

The broad and robust interpretation of misrepresentation has been reinforced by several court rulings. Justice O'Keefe held that the wording of the Act must be respected, and a robust interpretation is necessary to maintain the integrity of the immigration process. This was echoed by Justice Russell, who emphasized that misrepresentation can occur without the applicant’s knowledge if it induces an error.

In judicial reviews, the courts assess whether the decision maker followed the correct procedures and whether the final decision was reasonable. Justice Russell noted that an applicant’s duty of candour is paramount, requiring them to ensure the completeness and accuracy of their applications. Misrepresentations, whether fraudulent, negligent, or innocent, are scrutinized to maintain the integrity of the immigration system.

Consequences of a Misrepresentation Finding

If an applicant is found inadmissible for misrepresentation in relation to an application made outside of Canada, they will remain inadmissible to Canada for a period of five years, during which they may not apply for permanent residence. In the case of an applicant found inadmissible for misrepresentation in relation to an application made inside of Canada, the same five-year bar applies, but commences once the applicant is removed from Canada.

These severe consequences can also impact the applicant’s family members. Individuals can be found inadmissible for having an inadmissible family member, whether the family member is accompanying them on the application or not, and where the individual is an accompanying family member of the inadmissible person. Specifically for misrepresentation, the inadmissibility and five-year bar extends to family members with respect to permanent residence only – meaning the family members of the inadmissible person may still apply or be eligible for temporary residence status in Canada. In some cases you may need to seek a Temporary Resident Permit, which may be issued by Canada Border Services Agency (CBSA) to remain or enter Canada after a misrepresentation finding.

Seeking Advise from AKM Law as Your Immigration Lawyers

AKM Law will answer questions and help guide if you find yourself facing allegations of misrepresentation in your immigration application. Understanding what constitutes misrepresentation, the potential consequences, and the available defenses is crucial. By being thorough, honest, and seeking professional assistance, you can navigate this challenging situation and work towards a favourable resolution. Remember, transparency and accuracy are your best allies in the immigration process for your misrepresentation Canada process.

Whether you're dealing with the initial stages of an application or facing an appeal for misrepresentation, taking proactive steps and seeking professional help can significantly impact the outcome. Always aim for complete honesty and diligence to avoid the pitfalls of misrepresentation and ensure a smoother immigration journey.

Legal Disclaimer: This article provides general information only and does not constitute legal advice. For legal advice, consult the relevant legislation or regulations, or contact our immigration lawyers directly.