February 10, 2015

Misrepresentation and Materiality – What Many People Don’t Know!

Posted by Joanna Mennie - Bellissimo Law Group PC

I recently argued a case at the Federal Court of Canada which turned on what appeared to be a simple mistake: an incorrectly checked box on an application form. Unfortunately, such a seemingly small detail can have extremely serious consequences, especially given recent changes to the Immigration and Refugee Protection Act (IRPA) surrounding misrepresentation.

The IRPA (subsection 40(1)(a)) makes clear that not any misrepresentation will render a permanent resident or foreign national inadmissible. Rather, a person is inadmissible “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.” What this means is that to be captured by subsection 40(1)(a), the misrepresentation must affect, or have the potential to affect, either the processes undertaken or the final result.

In our recent case, the Applicant had applied for permanent residence in the Provincial Nominee Program (PNP). His wife and children were accompanying dependents, and his wife’s form mistakenly said that she had not been refused a visa to Canada or any other country. In reality, she had previously been refused a visitor visa to Canada. Because of this, he was found to be inadmissible based on misrepresentation for a period of 2 years. Importantly, the law has recently changed, making foreign nationals or permanent residents inadmissible for 5 years based on misrepresentation. This is a very significant penalty for what may be accidental oversights. For more on this, please see Ms. Roth’s earlier blog post on misrepresentation, found here.

At Court, we argued that although the incorrectly checked box was certainly an error, it was not a material error, as it could not have affected the processing or outcome of the Applicant’s permanent residence application. Regardless of his wife’s past visa refusal, this would not have affected investigations into her admissibility to Canada, nor would it have affected the Applicant’s eligibility in the PNP program. Finally, this past visa refusal was already known to CIC either way, as they were the authority which refused this application in the first place.

Our arguments succeeded at Court, which is a wonderful resolution for this family. However, it is important to be aware that in other circumstances, something as simple as an incorrectly checked box on a form could most certainly lead to a finding of misrepresentation under subsection 40(1)(a). For example, had his wife been refused a visa to the U.S. and not checked the box on the application form to declare this, then this misrepresentation could be material. After all, if she did not tell CIC that she was refused a visa to the U.S., CIC might not have verified her immigration records with the U.S. as thoroughly and looked into the reasons for refusal. This could lead CIC to issue her a visa improperly.

Misrepresentation is a particularly complex area of the law. Unfortunately, many people do not realize that honest, minor mistakes can have devastating consequences. However, it is important to understand the nuances of materiality and the established legal exceptions to be sure that your case is being advanced as favourably as possible. When dealing with allegations of misrepresentation we would always recommend that individuals seek legal advice!

For more information on misrepresentation, please click here.