Correcting the Record: Dodging the Misrepresentation Bullet

Canadian immigration law treats misrepresentation harshly. Section 40(1)(a) of the Immigration and Refugee Protection Act (IRPA) provides that a foreign national or permanent resident is inadmissible for “directly or indirectly misrepresenting or withholding material facts … that induce or could induce an error in the administration of the Act.” A finding under this provision carries a five-year ban on re-application and long-lasting consequences for family unity.

Traditionally, the Federal Court has confirmed that misrepresentation occurs at the moment a false statement is submitted—even if the error is later caught by IRCC. Applicants cannot expect to withdraw an application or rely on the fact that the officer would have discovered the truth anyway. The duty of candour is strict.

But what happens if the applicant corrects the record before the officer has any chance of relying on the misinformation?

The Ganeshalingam Case

In Ganeshalingam v. Canada (Citizenship and Immigration), 2024 FC 1437, Justice Battista grappled with precisely this scenario. The sponsored spouse initially denied having been detained in Sri Lanka. Before his interview—and before any background checks were complete—he wrote to the visa office, admitted the error, and provided police documents confirming a one-month detention in 2008.

The visa officer accepted the marriage was genuine but refused on s.16 (concerns whether the application was true/accurate). On appeal, the Immigration Appeal Division (IAD) went further, adding inadmissibility for misrepresentation under s.40. It dismissed the appeal, reasoning that “[t]he fact that the Applicant lied, was caught, and then repented does not mean that a misrepresentation did not take place.”

The Federal Court found this reasoning “unintelligible and unreasonable.”

Voluntary Correction vs. Being “Caught”

Justice Battista drew a sharp distinction between repentance after detection and a proactive, voluntary correction:

“The evidence was clear that the Principal Applicant voluntarily corrected the misinformation … and was not ‘caught’ by the decision maker.” (para 18)

The IAD’s contradictory findings—that the applicant had both corrected and been “caught”—could not stand.

More importantly, Justice Battista held that the statute itself requires a risk analysis:

“The IAD should have assessed the Principal Applicant’s correction of misinformation in relation to its potential to induce an error in the administration of the IRPA. In my view, the assessment of this risk is a clear statutory requirement.” (para 22)

Because the correction was made before interview, before background checks, and before detection, there was no realistic prospect of an error being induced.

Materiality and Purpose of Section 40

Justice Battista underscored that Parliament chose qualifying words—“material,” “relating to a relevant matter,” and “could induce an error”—to limit the reach of s.40. The purpose is to prevent administrative mistakes, not to punish every falsehood regardless of consequence.

He warned of “absurd consequences” if applicants were penalized even when they promptly corrected errors:

“If applicants understand that any error, however caused, will attract the severe consequences of the provision, there will be less incentive to correct inaccurate information … Such an interpretation would thwart Parliament’s purpose.” (para 38)

Implications for Counsel and Applicants

The Court distinguished earlier cases such as Oloumi and Goburdhun, where the misrepresentations were uncovered by officers and only then addressed. Ganeshalingam creates space for a defence where the applicant comes forward first.

For practitioners, the key points are:

• Timing is critical. A correction made before the officer detects the issue, before interview, and before background checks, weighs strongly against a finding of misrepresentation.

• Risk of error must be assessed. Section 40 requires decision-makers to evaluate whether the corrected information could still induce an administrative mistake.

• Candour is incentivized. Interpreting s.40 to allow voluntary corrections promotes the Act’s purpose by encouraging applicants to “come clean” rather than hide.

Conclusion

Ganeshalingam does not erase the duty of candour. False answers remain perilous, and repentance after detection will rarely succeed. But where an applicant proactively corrects misinformation—particularly on facts not apparent to the officer—Justice Battista has confirmed that s.40(1)(a) must be applied in a way that accounts for risk and purpose.

This case reminds us that not every misstatement is fatal, and that the law must still be applied with coherence, proportionality, and common sense.