Spousal sponsorship applications in Canada can be complex, especially if there are issues of misrepresentation involved. Misrepresentation refers to providing false information or documentation or withholding relevant information in an immigration application.
The Canada Border Services Agency handles cases of misrepresentation and imposes consequences for providing inaccurate information, which can include being banned from Canada for a period of time.
Not being truthful or submitting fraudulent documents in support of an immigration application knowing or unknowingly could result in a finding of inadmissibility for misrepresentation. The Immigration and Refugee Protection Act states in section 40 that a foreign national or permanent resident is inadmissible to Canada for misrepresentation.
As mentioned, misrepresentation includes failing to declare material facts related to relevant matters that could result in errors in the administration of Immigration laws in Canada. Misrepresentation normally results in a person being found inadmissible and being banned for 5 years to Canada.
Situations where a spouse may be found to have misrepresented:
Failing to disclose a previous refusal of a visitor visa or permanent residence application to Canada or any other country;
Failing to disclose a removal (deportation) from Canada, or any other country;
Knowingly or unknowingly submitting fraudulent documents;
Failing to disclose a refugee claim in Canada or in any other country;
Failing to disclose criminal charges, and/or convictions;
Failing to mention family members;
Would any mistakes result in Misrepresentation?
It’s important to note that not all mistakes in an immigration application amount to misrepresentation. For example, you submit a Generic Application form and input an incorrect height; this will likely not amount to misrepresentation. Or in canvassing your relationship with your spouse, you misremember that your first date was at the movies, when really it was at a restaurant.
Misrepresentation includes withholding material facts relating to relevant matters.
In order for an inconsistency, omission or submission of incorrect information to amount to misrepresentation, it must be material and relevant, and create the possibility that an immigration officer misapplies the immigration laws.
Am I entitled to a procedural fairness letter?
In some cases, immigration officers may send the applicant a procedural fairness letter or request letter to warn about the consequences of misrepresentation and ask the applicant about the incorrect information or omission. If you or your spouse receive a procedural fairness letter that mentions the risk of misrepresentation, it is important that you speak to a knowledgeable representative in order to adequately allay the concerns of the officer.
Is my spouse inadmissible to be sponsored in a spousal sponsorship application if they have Misrepresented?
If your spouse has received a ban of 5 years to Canada for misrepresentation, it is still possible to sponsor them for permanent residence despite them being inadmissible for misrepresentation. Generally, in permanent resident applications, an applicant can request special relief to overcome ineligibility or inadmissibility. In order to overcome inadmissibility pursuant to misrepresentation an applicant may ask to be granted special relief under humanitarian and compassionate considerations. A foreign national continues to be inadmissible for misrepresentation for a period of five years following a determination of inadmissibility, either outside or inside Canada. The relevant section to request H&C relief is: ?
25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
Another option is to have the inadmissibility finding in the underlying decision reviewed at the Federal Court. At the Federal Court, the applicant has the opportunity to challenge the decision of the immigration officer for being unreasonable on the basis of misapplication of the law or the facts. Provisions govern subsection 40(2) of the Immigration and Refugee Protection Act regarding the consequences and implications of misrepresentation in Canadian immigration law. In order to judicially review a decision at the Federal Court, it is important to ensure that the required materials are filed before the deadline. You can find the prescribed timelines on the Federal Court of Canada website.
Additionally, an applicant may consider applying for a Temporary Resident Permit (TRP) to overcome inadmissibility due to misrepresentation.
What happens if my application is refused for Misrepresentation by the immigration appeal division?
If you have submitted a spousal sponsorship application, and it was refused due to misrepresentation, you may have the opportunity to file a spousal sponsorship appeal to the Immigration Appeal Division (IAD) and argue for H&C relief and considerations at the appeal. At the IAD, the sponsor and applicant will have the opportunity to make their case, demonstrate their genuineness, and make arguments based on H&C considerations before a Member at the Immigration and Refugee Board who is an independent decision maker.
Why should you hire us as your Immigration Lawyers?
If you and your spouse intend to submit a sponsorship application while your spouse has a misrepresentation ban, or if your sponsorship application has been refused, it is imperative that you seek out legal advice from an experienced Immigration Lawyer from AKM Law. Understanding Canadian Immigration laws, and the facts that led to the misrepresentation finding are pivotal in crafting the most effective defense and overcoming those concerns through legal arguments.
Be cautious of using a foreign agent who may include fraudulent documents in your visa application, as this can lead to severe consequences.
For more information, contact us at AKM Law today.
