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

40. (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 the 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 Sélection du Québec (CSQ) or application to the Provincial Nominee Program ) PNP) 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.

Sources

The post My Application Was Refused for Misrepresentation but I Did Not Lie Now What? first appeared on Bellissimo Law Group.

The post This Week’s Success Story: Misrepresentation Finding in Spousal Sponsorship Application Overturned! first appeared on Bellissimo Law Group.

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.

The post Common Misrepresentation When Filing Temporary Resident Applications first appeared on Bellissimo Law Group.

1. Purpose of Visit

May seem obvious but the reason for the visit as well as the time requested for the travel must make sense. If the trip is for personal reasons do not couch it as a business trip. If visiting a boyfriend or girlfriend, be open and do not suggest it is to visit a family member because it may sound more compelling.

The purpose of visit could be to see many people. Clear intentions are always best. Misrepresentations on visitor visas can come back to haunt foreign nationals when applying for permanent residency. In short, the purpose for the trip must be clear, credible and fully set out.

2. Immigration Status in Home Country

There must be clear declarations of dual citizenship, permanent and/or temporary status. It is also important to provide the jurisdictional contexts. United Arab Emirates (UAE) for example, does not recognize dual citizenship and people obtain their residency visa for as long as they have employment. So as one example, if someone from the UAE was planning a 6 month visit without reference to their immigration/employment status, this could be cause for concern on behalf of an immigration officer.

Obviously travel and immigration documents must be current. Failing to provide a clear immigration and residency history can be problematic.

3. Ties in Home Country

Where immediate family members live, familial responsibilities and resulting financial obligations are important factors that come into play. Limited ties to a home country although unfair can in certain circumstances be an issue. An applicant must clearly set out employment and give a sense of day to day living. Is the applicant caring for a sick relative? Is there a big project coming up at work? Why are these details important? Because there are rarely in person interviews anymore so these paper/online applications must come to life. It must be made clear the applicant has a life to return to in their home country.

4. Past Travel and Civil History

A positive travel history and exemplary civil, employment and financial records are critical. Any admissibility issues like criminality, security are givens. As is evidence that an applicant will not pose any health risks and remains in good health and has no history of any communicable, physical or mental disease. Where health is a concern, the arrangement of travel and medical insurance may assist. More obscure concerns can sometimes relate to distant entry or removal issues in other countries and refusals in other countries may weigh heavily.

Educational and employment history should be set out. Financial records should be clearly detailed and supported, demonstrating a consistent balance and not a recent deposit to establish financial strength. Personal and business financial records should be distinguished. In all, exhibiting financial stability and establishment as well as the ability to be self-supporting while visiting Canada are important.

5. Ability to Leave Canada

This one is sometimes overlooked. What does the applicant have to go back to at the conclusion of the visit? If the applicant has travelled extensively, have they always complied with the conditions of their stay? The more countries the better and extensive history of compliance during travels abroad is a strong indicator of future comportment with the terms of any visa issued by Canada. The need to travel to Canada more than once is also helpful because an applicant is unlikely to jeopardize the long-term ability to continue to enter Canada as well as other countries on any future travels for one trip.

So, a number of factors to consider.  Happy travels!

The post Top 5 Key Tips When Preparing and Submitting an Immigration Visitor Visa Application to Canada first appeared on Bellissimo Law Group.

A. Very complicated question. There is more to this question than meets the eye and more information is required because the timing of these events and the types and lengths of these respective relationships are not clear and could be very important – beyond the issue of his ability to sponsor his girlfriend.  So, a number of questions would be asked by immigration counsel providing guidance on this matter.

First, was his wife in a relationship with another man in Canada while she sponsored him and at the time he landed in Canada?

Second, was he in a relationship perhaps even a common-law relationship (cohabitated together for more than one year for immigration purposes) with his current girlfriend in the Philippines before and/or during the sponsorship process as well as at the time of landing?

If they both were engaging in relationships, perhaps even living in common-law relationships, with other people at the time of sponsorship/landing, she in Canada and he in the Philippines, this could raise potential problems as to the genuineness of their relationship, ability to sponsor, and your friend qualifying as a spouse which includes the existence of a committed and exclusive spousal relationship by both individuals throughout the time of sponsorship and landing at a minimum.  This would lead to other questions.

Was the marriage only for immigration purposes? Had their marital relationship failed before or during the sponsorship process?  A finding in this regard could translate into deportation proceedings for your friend and the sponsorship of his current girlfriend would not be the primary concern.

On the other hand, if they both engaged in brief affairs this may not necessarily be definitive unless the timing and length were critical to the sponsorship and landing.  Any affair during the course of a spousal relationship would be relevant to assessing the genuineness of that relationship.

As it relates to your friend’s current circumstances assuming his sponsorship and landing from a few years ago do not raise issues and he has cohabitated with his current girlfriend for more than one year amongst other eligibility factors, generally a person who is separated from a spouse and living or has lived with somebody else in a common-law relationship may still sponsor the person as his common-law partner even if not divorced.  However, if your friend lived with her before becoming a permanent resident of Canada for over a year and did not declare her on his permanent residency application as a past common law partner before landing – this too could raise legal challenges as to potential misrepresentation and sponsorship issues.    In short, eligibility, timing and length of his relationship amongst other factors will be critical determining factors in a very complex factual and legal assessment.  He should seek out legal counsel immediately. Good luck!

For more information on Spousal Sponsorship, please click here.

To book a consultation to discuss your immigration matter, contact us today.

The post My Marriage is Over and I Want to Sponsor My Girlfriend, Can I? first appeared on Bellissimo Law Group.

The couple was seeking to return to Canada, where they held valid temporary study and work permits. They submitted initial TRV applications to the Visa Office, but neglected to mention on their application forms that they had been refused Canadian visas in the past, leading a Visa Officer to believe that they had purposely misrepresented their immigration history. The couple responded to a procedural fairness letter explaining that any omissions were unintentional and invited the Visa Office to verify whether the information they had provided was correct. While awaiting a final decision from one Visa Office, the couple flew to another country to visit a sick relative. While there, they submitted new TRV applications indicating that they needed to urgently return to Canada.

All four applications were refused, with the first Visa Office finding the applicants inadmissible to Canada for five years for having misrepresented their immigration history. The Visa Office also alleged that the couple was trying to circumvent this misrepresentation finding by submitting new TRV applications while their initial applications were still in process. The other Visa Office refusals also alleged that the female applicant had contravened conditions of her study permit. These refusals were devastating for the couple, who had lived in Canada since 2006 and were awaiting a decision on their permanent residence application.

All four decisions were challenged in Federal Court, and after complex written pleadings and a lengthy hearing, we were successful in overturning all four refusals and the misrepresentation findings were set aside. The family will now have the opportunity to obtain their TRVs, return to Canada, and pursue their application for permanent residence.

The post This Week’s Success Story: Four Temporary Resident Visa Refusals and Two Misrepresentation Findings Overturned first appeared on Bellissimo Law Group.

It is also possible although unusual for penal charges to be laid under the Immigration and Refugee Protection Act (IRPA) for misrepresentation:

127. No person shall knowingly

a)directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

b)communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada; or

c)refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this Act.

128.  A person who contravenes a provision of section 126 or 127 is guilty of an offence and liable

a) on conviction on indictment, to a fine of not more than $100,000 or to imprisonment for a term of not more than five years, or to both; or

b) on summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both.

The British Columbian Court in R. v. Zhao, 2013 BCPC 227 (B.C. Prov. Ct.) sentenced an individual to a 90 day custodial sentence in the community under section 127. The Defendant used a false passport in order to obtain a study permit in Canada. He entered Canada and studied under this false name. He then made a refugee claim under his real name, alleging that he faced persecution in China (during the same period that he was in fact studying in Canada). The Defendant was granted refugee protection and obtained permanent residence in Canada. He then sponsored his wife and their daughters to Canada, all of whom received Canadian citizenship. Years later the Defendant applied for a new B.C. driver’s license and through facial recognition software this application was matched to the driver’s license he possessed under his false name a decade previous. The Canada Border Services Agency investigated and arrested the Defendant, upon which he was fully cooperative with the investigation.

The case of Zhao is certainly an extreme example, but it demonstrates that the CBSA has latitude in deciding how to address misrepresentation findings.  In this case, had the CBSA pursued deportation over penal charges the outcome would potentially have been the appeal being allowed for H&C grounds. The Defendant had been in Canada over a decade, his wife and children were Canadian citizens, he had stable employment and supported his family. In such circumstances, a penal proceeding was likely to punish the Defendant more than an immigration proceeding.

In all, we have had success in challenging misrepresentation cases where the net was cast too wide by immigration officials or they failed to consider the whole of the evidence or the investigation stopped short of uncovering the truth and instead jumped to a conclusion of misrepresentation.  Misrepresentation cases are fascinating and it is encouraging that where appropriate, these cases have been successfully challenged.

To learn more about misrepresentation cases, please click here.

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To read the  decision click here.

The post Misrepresentation Finding Rejected by Federal Court! first appeared on Bellissimo Law Group.

In those days, many permanent residents had good reason to challenge the removal order and appeal the decision to the IAD. However, as of December 2014 the Immigration and Refugee Protection Act has been amended to create a five-year bar to re-applying to enter Canada, should the appeal be refused. This bar – wherein the individual remains inadmissible to Canada – runs from the date that the removal order is enforced (i.e., when the individual leaves Canada).

Permanent residents, found to be inadmissible for misrepresentation, have a serious choice to make. Should they immediately allow the removal order to be enforced and leave Canada or should they fight the decision at the IAD? If the choice is to leave Canada, the five-year bar beings operating immediately upon leaving Canada. However, if the choice is to fight and the IAD refuses the appeal, then the five-year bar does not commence until after the appeal and after the individual leaves Canada. Given that appeal time lines presently take 24 months to reach a hearing and even longer to reach a decision, timing is important. The choice is likely to turn on how strong the appeal will be, how connected the individual is to Canada, and what options are available in the future. In either case, timing is a factor to consider and legal counsel can help evaluate the options.

For more information on misrepresentation click here.

To learn more about removal orders click here.

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