May 25, 2022
My Application Was Refused for Misrepresentation but I Did Not Lie Now What?
A number of people (foreign nationals) looking to immigrate to Canada find themselves in this situation often when seeking a visa. Misunderstandings and unfair assessments are not unusual. For purposes of this blog I will focus on foreign nationals seeking to immigrate to Canada. So, if you have been refused for misrepresentation and are confident you, or anyone acting on your behalf, did not misrepresent anything including not mentioning a fact that could be important there are steps you can take to try and save your application.
First, lets look at section 40(1) of the Immigration and Refugee Protection Act IRPA reads:
- (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;
This provision is very broadly worded so it can capture as many circumstances as possible including indirect misrepresentations – someone taking steps on your behalf. Second, the penalty for a finding of misrepresentation is grave as an applicant is deemed inadmissible to Canada and barred from applying for permanent residence for five years.
Given these serious consequences though, officers should employ a high standard of procedural fairness. The duty of fairness requires an officer to ask appropriate questions when they have concerns about the credibility, accuracy, or genuine nature of information provided by an applicant that otherwise would be sufficient, if believed.[1]
A visa application must be considered in its totality and cannot be compartmentalized, particularly when making a finding of misrepresentation. Given the severe penalties, findings of misrepresentation must not be taken lightly and should only be made where there is clear and convincing evidence.[2]
Further still an assessment of an application must be procedurally fair. A procedural fairness letter (PFL) must be inadequate and mention for example, whom the Officer had spoken to, what specific information they had provided about themselves, their relationship to or knowledge of the Applicant and how their answers were inconsistent with the information previously provided by the Applicant. If there are verifications there may be a basis to seek a copy of those notes.[3] In Bao, the Honourable Justice MacDonald, citing Ge, found that because the officer in that case had developed credibility concerns arising directly from the applicant’s PFL response, “the Officer should have raised those concerns directly with the Applicant.”
Finally, the assessment of the evidence must also be reasonable. In Rong, the Honourable Justice Tremblay-Lamer found reasoning about automatically failing to contact the supporting employer references to be both perplexing and unreasonable. Justice Tremblay-Lamer concluded that the Officer’s reason for failing to contact the representative of the company did not make sense, “given the goal of the fairness letter was to allow the applicant an opportunity to address certain concerns and documentation issued by the applicant’s stated employer was the strongest and perhaps only way to address those concerns.”[4] Similarly, in Chhetry, the Honourable Madame Justice Strickland noted:
The difficulty in this case is that neither the decision nor the record demonstrates that the Applicant’s response to the fairness letter, including the assessment of the supplementary evidence, was reasonably assessed.[5]
Furthermore, as stated by the Honourable Justice Diner in Toki, wherein a deciding officer disregarded evidence provided by the Applicant in favour of on-site verifications that had been conducted: “the consequences of deliberate misrepresentation are serious. Consequently, the evidence supporting such a finding must be clear and the Officer’s reasons must reflect this. This includes explaining why evidence which counters such a conclusion is, at minimum, acknowledged.”
Ultimately, officers must provide clear reasons for preferring certain evidence over evidence provided in response to a PFL. In this respect, as noted by the Honourable Mr. Justice Lemieux in Tahiru:
[…] cogent reasons must be provided for discounting evidence or giving little or no weight to tendered evidence, such conclusions must be reasonable and made taking into account all of the evidence before the decision maker.[6]
Here at Bellissimo Law Group PC we are pressing the government for change!
Why?
Forms and requests for information should be transparent and in plain language. Each year, we see many people facing misrepresentation allegations in study permit applications because they legitimately misunderstood a question on a temporary resident or permanent resident application form, usually relating to previous refusals. This is in part because certain questions are not easy to follow. For example, on study permit application form IMM 1294 (06-2019) E, the question at Box 2 (b) reads “Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory? Many clients miss the portion regarding “any other country or territory”. Instead of multiple questions presented as one, the questions should be divided and set out in plain language. For example, we would suggest: Have you ever applied to Canada for any type of immigration application, including for a permanent or temporary residence (visit, study, work) visa or permit, and been refused? Have you ever applied to any country other than Canada for any type of immigration application, including for a permanent or temporary residence (visit, study, work) visa or permit, and been refused?
The forms become even more confusing for applicants who have applied for and were refused a study permit and then apply for permanent residence. At Box 6(d) of the permanent resident application form IMM 5669 (06-2019) E it asks if the individual has “been refused refugee status, an immigrant or permanent resident visa (including a Certificat de selection du Quebec (CSQ) or application to the Provincial Nominee Program) or visitor or temporary resident visa, to Canada or any other country or territory?”. The question introduces refugee matters. It also refers to visas only, and not permits. An applicant that was refused a study or work permit may interpret the question at Box 6(d) as not applying to their circumstances because there is no mention of the word “permit”. The question at Box 6(d) additionally provides another example of asking multiple questions as one. This runs counter to the purposes of positioning applicants to be candid and reads more like a trap. Again, this question could be broken down and simplified. This would strikingly require twelve separate questions to position Box 6(d) fairly.[7] Applicants must always be candid, but we must work towards facilitation and not penalization; otherwise, innocent errors are captured in the same group as fraudsters and violators.
The consequences that follow a misrepresentation finding are significant: a five-year ban from Canada and five-year bar from applying for permanent residence. When captured by a misrepresentation finding, many immigration applicants have to dramatically alter their life plans and potentially those of family members. Few individuals can put their lives on hold for five years and/or still qualify five years later.
Finally, a decision of the Federal Court has recognized that aside from those trained in law these questions are not as clear as legal wordsmiths believe they are. In the decision of He v. Canada (Citizenship and Immigration), 2022 FC 112, the Honourable Madam Justice Sadrehashemi held at paragraph 34:
[28]The Officer also noted that Ms. He had made previous Canadian temporary resident visa applications, including in 2015, where her application was approved. The Officer drew from this that Ms. He “therefore is familiar with the process, the statutory questions, as well as the need to answer all questions truthfully.” While it may be true that Ms. He would have been familiar with the process and is expected to understand that she has an obligation to answer all questions truthfully, the assertion that she would have been familiar with the “statutory questions” on the Work Permit Application is unreasonable. The question at issue is lengthy with multiple parts. It is unreasonable to expect that applicants would remember the details of the questions years later. [Emphasis Added]
So, if you are subject of a misrepresentation finding to your case assessed to ensure whether a challenge to Federal Court may be required, contact us today.