Misrepresentation is broadly worded in the Immigration and Refugee Protection Act (IRPA) and is broadly interpreted. The objective of this section is to deter and to maintain the integrity of Canada’s immigration system and hence it is to be given a broad interpretation and even a “risk of an error” for the administration of the IRPA is sufficient for its invocation. For obvious reasons, there is an onus imposed on those seeking status in Canada, IRCC must rely on the applicant –the administration of the Act would grind to a halt otherwise.
There are serious consequences that flow from an allegation of misrepresentation. It is essential that experienced counsel are contacted and retained as soon as possible.
There are myriad reasons why individuals would lie or withhold information in seeking status in this country. Those reasons range from deliberate, knowing deception to obtain a benefit not otherwise available to inadvertence, honest errors or simple misunderstanding. Sometimes people lie when they don’t even need to.
There are multiple ways that misrepresentation comes to the attention of IRCC and CBSA; both take an understandably dim view of its practice.
Misrepresentation goes far beyond the deliberate lie -where the applicant or person concerned provides inaccurate or misleading information or responses pertaining to the application or entry. This term of art encompasses the act of withholding –that is where the applicant or person concerned has failed to disclose facts within her or his knowledge that is material.
Serious consequences flow once there is reason to suspect the veracity of statements, information or documents made in support of an application or in respect of entry. A finding of misrepresentation can be made if the information in question could have influenced processing or it could have had the potential to do so. The avenues to address this very serious allegation are limited. Beyond a bar to entry or removal proceedings, individuals can also be charged criminally for immigration misrepresentation.
A misrepresentation concern can arise in the context of an application to enter Canada (whether TRV or an application for Permanent Residence) -that is prior to coming to Canada; examination upon entry; applications made after entry; and arising from examination subsequent to Canada either arising from investigation or from a submitted or pending application. Allegations of misrepresentation can arise from the answers to the requested information in an application; from the supporting documents; and/or from examination.
There are consequences even where the individual is truly innocent and hasn’t done anything remotely wrong –except choose the wrong sponsor. The stain of misrepresentation can be passed on; the iniquities done by a sponsor can be passed onto a sponsored spouse, common-law partner or dependent child ass.40(1)(a). Fortunately, there is an added layer of discretion here –the Minister must be satisfied that the facts “justify the inadmissibility”.
This section also impacts Protected Persons and Citizens. Their status can be set aside by way of an application to vacate and revocation respectively. Once that occurs, they become Foreign Nationals and are, by operation of statute, inadmissible to Canada.
The consequences to a finding of misrepresentation are serious. They include enforcement and potential removal for Permanent Residents and a 5 year ban for Foreign Nationals. In practical terms, such a finding could end the aspiration to live in Canada or the end of a life built here in Canada.
Despite the broad language and (many) somewhat dispiriting cases there is some possibility of avoiding the brand of misrepresentation. There is scope for discretion by a decision maker. For example, what constitutes misrepresentation for one officer may simply be a failure to comply with the requirement under s.16(1) for another. Of course, Officers are human and make mistakes; the impugned issue may not in fact be material. Further, an allegation of misrepresentation that has resulted in a Section 44 Report can be potentially checked at the Immigration Division. While the IRB and the Court has been deferential to the breadth of the legislation and the powers of the responsible decision maker, there is some possibility of respite depending on the facts. Permanent Residents have recourse to the equitable jurisdiction of the Immigration Appeal Division. Generally speaking, and largely for individuals already here, there is always the possibility of an application under s.25(1) or s.24 of the Act.