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February 28, 2020

Am I Inadmissible for Five Years or Two Years for Immigration Misrepresentation? A Two Year and Not a Five-Year Bar May Apply to Your Case

Posted by Mario Bellissimo - Bellissimo Law Group PC

A few years ago a number of cases began to arise regarding misrepresentations and a question came to mind when representing applicants after the change in the law: when does the two-year and when does the five-year bar apply for findings of misrepresentation?  We litigated a few cases, and I wrote an article in Immquest a few years ago.  Here is some of what we covered.

Application of the Five-year bar

Amendments to section 40(2)(a) of the IRPA came into force on 20 November 2014 as a result of the Faster Removal of Foreign Criminals Act (FRFCA), following which the inadmissibility period was raised from two years to five years.[1] A previously publicly-unavailable Operation Bulletin 595 (OB 595), obtained by way of an Access to Information and Privacy request, outlines the CBSA and IRCC interpretation of the change in the law.[2] According to OB 595, the new, five-year period of inadmissibility is applicable as of the date a removal order is enforced. Thus, even if an individual were issued a removal order for misrepresentation before 20 November 2014, based upon the OB they would be subject to the new, five-year period of inadmissibility wherever the order is enforced on or after 21 November 2014. However, OB 595 does not have the force of law and may well reflect an incorrect interpretation of the IRPA. On this issue, we turned to the language of the Act, case law, and relevant interpretive principles.

The IAD has been uneven as to whether the two-year or the five-year bar would apply.[3] The provision addresses when the inadmissibility period begins, rather than specifying that the duration of inadmissibility is calculated as of when the removal order is enforced.  The case we argued at the IAD refused to assume jurisdiction concluding it was premature.  Up until recently, the Federal Court had yet to comment on this issue.

Substantive Changes and Retrospectivity of Law

We argued that the new, more severe penalty would not apply to applicants who are issued a removal order prior to the FRFCA coming into force. There is a presumption against the retrospective or retroactive operation of statutes unless expressly required by the language of the Act.[4] The presumption against retrospectivity is not concerned only with punishment or penal consequences, and this principle has been similarly applied in the immigration context.[5] As such, Parliament likely did not desire the retrospective application of the five-year inadmissibility period to cases of misrepresentation when amending the IRPA between 2013 and 2014. Neither the FRFCA nor the Order contain transitional provisions or otherwise address the issue of whether the more severe misrepresentation penalty applies to removal orders issued before the coming into force of the modified section 40(1)(a) of the IRPA in November 2014. Hansard notes are also silent on this particular issue.[6]  Changes in law are presumed to be prospective as, absent explicit statutory language, it is assumed that it was not the legislative intent to create new consequences for past actions. The Supreme Court reinforced this foundational legal principle in Tran.[7]

Recently the Federal endorsed this position in Zeng v. Canada 2019 FC 1586.  The Honourable Mr. Justice McHaffie concluded:

[55]  The exclusion order issued to Mr. Zeng was issued before the amendments to section 40 of the IRPA came into force. The consequence of that exclusion order at the time it was issued was that Mr. Zeng was inadmissible, and would remain inadmissible for a period of two years from the date of enforcement of the order. Although the consequences of an exclusion order for inadmissibility were subsequently increased, I find that there is no indication that Parliament intended that increase to apply to exclusion orders that had already been issued, such as that issued to Mr. Zeng, whether or not they had been enforced.

[56]  Mr. Zeng remained inadmissible for a period through May 22, 2017. His application for permanent residence filed on November 24, 2017 should not have been considered withdrawn based on Mr. Zeng’s continued inadmissibility or the prohibition on application during that period. While the officer’s decision was understandable given both OB 595 and Mr. Zeng’s statement that the five-year period of inadmissibility applied, it was incorrect. That decision is therefore set aside and Mr. Zeng’s application for permanent residence is referred back for further processing.

As such, it is important that foreign nationals affected by this decision become aware that a potential return to Canada may just have become a lot sooner.

Thank you for reading.