April 9, 2018
Common Misrepresentation When Filing Temporary Resident Applications
In the case of Singh, 2015 FC 377, pars. 47-48, an applicant failed to include his prior failed refugee claim and removal from the U.S. on his temporary resident visa application. In Singh the applicant “did not think that something that occurred in the United States over nineteen years ago was relevant to his visa application, given the intervening connection he has established with Canada” and “did not believe that it was required to be disclosed in question 2(c) of the form.” In that case it appears the applicant made a conscious decision not to disclose. However, we have seen in many cases where misrepresentations being alleged involving that the same wording at issue in Singh – question 2(b), when read together with questions 2(a) and (c), were capable of being misunderstood.
Specifically in that section, the first question refers only to Canada. The second question refers to Canada and then mentions “or any other country”. The third question goes back to inquiring about Canada only. The way the questions are arranged and phrased, applicants mistakenly believe that the whole section is only about Canada. This is unfortunately leading to five year bans pursuant to section 40(2) of the Immigration and Refugee Protection Act (IRPA).
So what to do?
First, read the questions carefully and do not underestimate the significance of an incorrect answer in filling out immigration applications. Further still, filling out immigration forms must be undertaken with access to historical information that may be relevant to the questions being asked. Do not guess about the reasons and timing of previous refusals, removal orders, arrests, charges, and convictions to list but a few, when filing out your forms. Confirm dates and reasons for important immigration related events in your life.
Second, if an allegation of misrepresentation has already been raised by Immigration, Refugees and Citizenship Canada, your case should be assessed by an immigration lawyer to see if an innocent error exception, or materiality can be raised amongst other possible considerations, in defence. This argument does not suggest that applicants need not be accurate in filling out applications. Rather, an individualized assessment should be undertaken as to the inadvertence of errors made and any explanations provided.
Third, if you are already facing a refusal depending upon your immigration status and the stage of your case the matter may be examined at the Immigration Division, Refugee Protection Division, Refugee Appeal Division, Immigration Appeal Division and/or the Federal Court. For visitor visa refusals based upon misrepresentation an applicant may seek to challenge the decision to the Federal Court of Canada.
As one example, the innocent error exception has been applied as a defence where an applicant failed to include information, there are also procedural fairness defences and intent can indeed be a relevant factor in considering whether a finding of misrepresentation is warranted. See for example Lamsen v. Canada (M.C.I.), 2016 FC 815, par. 24, Punia v. Canada (M.C.I.), 2017 FC 184, par. 67, Berlin v. Canada (M.C.I.), 2011 FC 1117, pars. 19-22 and Osisanwo v. Canada (M.C.I.), 2011 FC 1126, pars. 9-15
Fourth, make sure to find out if your application has been refused for misrepresentation is the bar for two years or five years. Applicants face a significantly more severe consequence as a result of the Faster Removal of Foreign Criminals Act (Act). Section 16 of the Act increased the period of inadmissibility resulting from a finding of misrepresentation from two to five years. On 20 November 2014, section 16 of the Act came into force.
So there are many factors to consider when facing a misrepresentation allegation or finding. One thing is certain, we are finding because of the increase to the inadmissibility bar under IRPA subsection 40(2) more applicants are challenging these findings.
For more information on misrepresentation cases please click here.