Under Immigration and Refugee Protection Act (IRPA) 40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;
(2) The following provisions govern subsection (1):
(b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility
Misrepresentation involves providing false information or omitting relevant information in a manner that leads to incorrect conclusions. Misrepresentation can significantly affect the outcome of applications, status, or other related procedures. It typically includes:
- False Statements: Providing incorrect information, whether intentionally or unintentionally.
- Omissions: Failing to disclose relevant information that could affect the decision-making process.
- Fraudulent Documentation: Submitting fake or altered documents.
Misrepresentation under IRPA Section 40:
The Immigration and Refugee Protection Act (IRPA) of Canada addresses misrepresentation under Section 40. This section outlines the consequences and conditions under which an individual can be found inadmissible to Canada due to misrepresentation. Here are the key points:
Misrepresentation:
- Grounds for Inadmissibility:
- A foreign national or permanent resident can be found inadmissible for directly or indirectly misrepresenting or withholding material facts related to a relevant matter that induces or could induce an error in the administration of the IRPA.
- Types of Misrepresentation:
- Direct Misrepresentation: Providing false or misleading information in the application or during the examination process.
- Indirect Misrepresentation: Information provided by others on behalf of the applicant (e.g., family members, representatives) that is false or misleading.
- Material Fact: Any fact that could influence the decision of the immigration authorities.
- Consequences:
- Individuals found inadmissible for misrepresentation may face a ban from entering Canada for a period of five years.
- Permanent residents found guilty of misrepresentation may lose their status and be subject to removal orders.
- Exceptions:
- Honest mistakes made in good faith, provided they do not significantly alter the decision, might not always result in severe penalties.
- Applicants who are facing allegations such as misrepresentation may receive a letter of procedural fairness (PF) and will have the opportunity to respond to allegations of misrepresentation before a final decision is made.
Examples
- Case of False Documentation:
- An applicant submits a forged employment letter to demonstrate work experience. This is discovered during verification. The applicant is found inadmissible under Section 40 for misrepresentation and is barred from entering Canada for five years.
- Omission of Criminal History:
- A permanent resident renews their status but fails to disclose a recent criminal conviction in another country. Upon discovery, they may be deemed inadmissible under Section 40, potentially losing their permanent resident status and facing removal.
- Misleading Information from Representatives:
- An immigration consultant fills out an applicant’s form with incorrect information about the applicant’s family ties to Canada. The applicant, even if unaware, may still be held responsible for misrepresentation.
- Unintentional Errors:
- If an applicant accidentally omits a minor detail that does not materially affect the decision, they might be given an opportunity to correct the information without facing severe penalties, depending on the circumstances and the discretion of immigration authorities.
Understanding and adhering to the principles of honesty and full disclosure is crucial for anyone involved in the immigration process to avoid the severe consequences associated with misrepresentation under IRPA Section 40.
In a recent case law,2024 CanLII 38532 (CA IRB); An Indian citizen became a permanent resident of Canada through spousal sponsorship by her husband. Her husband fabricated employment history to obtain a work permit and later become a Canadian Citizen before he sponsored her. She was found inadmissible to Canada due to misrepresentation under section 40(1)(a) for making a direct misrepresentation of material fact in using her sponsor’s fraudulent information as to his employment, employment relationship, and work history to support her application for a permanent resident visa and she appealed the decision of minster.
The IRPA prohibits misrepresentations in the immigration process.
40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;
(2) The following provisions govern subsection (1):
(b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility
Respondent argued she is inadmissible due to section 40(a) of IRPA that her husband used fake employment documents to get a work permit, which led to his becoming a permanent resident. She is also guilty because she benefitted from her husband’s fraudulently obtained permanent status in Canada by becoming a permanent resident as his spouse and therefore, she is also inadmissible for misrepresentation
However, she argued in her spousal sponsorship application she never fabricated her husband’s employment history.
The Board member further in her decision stated that misrepresentations are sanctioned because truthful and complete information is essential to maintaining the integrity and effective operation of the immigration system. If the immigration system does not operate effectively and reliably, the health and safety of people in Canada and the security of Canadian society may be put at risk, people like to her, who have not misrepresented anything but have nonetheless benefitted from the misrepresentation of others.
The Board member found that the Immigration Division’s (ID) decision is legally invalid because there was no misrepresentation in the spousal sponsorship application that led to her obtaining status in Canada. Her sponsorship application was separate and distinct from her husband’s application for permanent residence. Therefore, she is not inadmissible due to his misrepresentation, whether direct or indirect. Although she benefitted from her husband’s misrepresentation, she is not culpable of misrepresentation. The Minster chose to pursue her for misrepresentation, even though a more appropriate legislative path was available.
Contact to speak to our Vancouver Immigration lawyer at YA Law Corporation.