The Withdrawal Gambit: When Withdrawing an Application Can Prevent a Misrepresentation Finding

Section 40 of the Immigration and Refugee Protection Act (IRPA) is one of the most severe inadmissibility provisions in Canadian immigration law. A misrepresentation finding not only results in refusal but imposes a five-year bar on re-applying and casts a long shadow over future dealings with IRCC.

The Federal Court has consistently held that a misrepresentation occurs at the moment a false application is submitted, regardless of whether IRCC “catches it” later. Withdrawal of the application does not undo the fact that a misrepresentation was made. However, recent jurisprudence highlights a nuance: while withdrawal is no absolute defence, a timely and proactive withdrawal—followed by a fresh, corrected application—can insulate the subsequent record from the taint of prior errors.

Kasimova v. Canada (Citizenship and Immigration), 2025 FC 1500

In Kasimova, Justice Brouwer set aside a misrepresentation finding where the officer had improperly relied on evidence from a withdrawn application to attack a subsequent one.

The applicant, a citizen of Uzbekistan, filed a TRV application in July 2023 but withdrew it nine days later after discovering “significant mistakes” and “errors and omissions” in the supporting documents. She expressly told IRCC she would correct and update the documents before reapplying. IRCC confirmed the withdrawal.

One month later, she filed a new application, submitting corrected financial documentation from Asia Alliance Bank and additional proof from Bank of America. Yet, when processing the new application, the officer issued procedural fairness letters referencing the earlier, withdrawn bank letter—verified with the issuing bank as fraudulent—and concluded that it “severely diminished the credibility” of the new documents.

The application was refused on March 26, 2024, with a five-year ban for misrepresentation.

The Federal Court’s Analysis

Justice Brouwer quashed the decision as unreasonable. The officer had improperly embarked on a “fishing expedition,” verifying and relying on documents from the withdrawn file. As the Court explained:

“The false document was not part of the current application and thus could not reasonably have induced an administrative error.” (Kasimova, at para 17)

The reasoning was unsupported by the evidentiary record—the GCMS notes even suggested the officer mistakenly believed the fraudulent document was still “in support” of the current application.

Brouwer J. distinguished cases relied on by the Minister, including Sheikh (where unreliable evidence tainted the same proceeding) and Da Costa Serrano (where a fraudulent document infected other documents in the same file). Those principles, he held, did not extend to properly withdrawn applications.

He underscored that while officers are not obliged to verify every document absent “strong facts,” they cannot reasonably target withdrawn evidence to the exclusion of new submissions—particularly given the severity of a five-year misrepresentation bar.

“Officers must remain vigilant that misrepresentation findings are sound, given their serious and lasting consequences.” (Kasimova, at para 21, citing Lamsen)

Practical Implications

Kasimova confirms that:

  • Withdrawal is not a cure-all. The misrepresentation technically crystallizes at submission. IRCC can still pursue refusal on s.16 truthfulness grounds.

  • But withdrawal can shield a new application. A proactive withdrawal before substantive processing—followed by a clean resubmission—can prevent prior errors from contaminating the new record.

  • Officers cannot “reach back.” Misrepresentation findings must be tethered to the evidentiary record of the application under review. Reliance on withdrawn documents risks unreasonableness.

  • Misrep is not interchangeable with credibility. A problematic document in a prior file may cast doubt on an applicant’s candour, but it does not automatically trigger s.40 consequences in a fresh application.

Conclusion

Kasimova strengthens the case for using the withdrawal strategy where an application contains defective or misleading documentation. While applicants remain exposed to refusal on ordinary credibility grounds, the Federal Court has made clear that officers cannot improperly revive withdrawn evidence to justify a misrepresentation finding.

In practice, timely withdrawal and transparent resubmission offer a narrow but meaningful path to avoid the devastating consequences of section 40 inadmissibility. Counsel should consider this strategy carefully, ensuring that any new application is complete, true, and supported by verifiable documents.