May 24, 2019

My Application Was Refused for Misrepresentation but I Did Not Lie Now What?

Posted by Mario Bellissimo - Bellissimo Law Group PC

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, let’s look at section 40(1) of the Immigration and Refugee Protection Act IRPA reads

  1. (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 adequate 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]

So, if you are subject of a misrepresentation finding and you know that you or anyone acting on your behalf did not misrepresent have your case assessed to ensure whether a challenge to Federal Court may be required.  In my next blog I will look at innocent misrepresentations is there a defence?  Thank you for reading.