Over the past few years, we have seen a significant increase in misrepresentation-based bars under section 40 (1) of the Immigration and Refugee Protection Act (IRPA). This is often based on section 16 (1) of the IRPA (which we’ll come back to).
In this post, we’ll summarize misrepresentation, the main issues surrounding it, and our approach to helping clients after they have received a Procedural Fairness Letter (more below) or been found inadmissible.
How Does the IRPA Define Misrepresentation?
Section 40 (1) of the 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;
- (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;
- (c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or
- (d) on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection 10(2) of that Act.
The following provisions govern subsection (1):
- (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and
- (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.
If Immigration, Refugees and Citizenship Canada (IRCC) or the Canada Border Services Agency (CBSA) find that you have provided inaccurate, incomplete, or inconsistent information, they could refuse your application to reside in Canada.
That could lead to severe disruptions to your life, career, and relationships if you have family or a job in Canada.
What Are Your Obligations When Applying for Residence in Canada?
You have an obligation to be honest when applying for residency, as stipulated in section 16 (1) of the IRPA:
16 (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
Section 16 of the Act also states that applicants must adhere to the following obligations:
- You must appear for an examination when requested by an officer.
- If you’re a foreign national, you must provide relevant evidence (e.g. photographs and fingerprints) and submit to a medical examination.
- As a foreign national applying for residency in Canada, you must appear for an interview upon request. This is for the purpose of an investigation undertaken by the Canadian Security Intelligence Service under section 15 of the Canadian Security Intelligence Service Act. You must submit honest answers to all questions during this interview.
All this may sound daunting, especially if you’re anxious to have your application approved as soon as possible. However, providing any false information, no matter how minor, could see you barred from applying to return to Canada for five years.
Examples of Misrepresentation
Misrepresentation may be intentional or unintentional. Applicants could falsely believe that information is correct when they submit it, and feel stunned when they’re refused on the grounds of misrepresentation. Alternatively, applicants can knowingly attempt to mislead the IRCC or CBSA with inaccurate information.
In either case, misrepresentation will not be tolerated and can lead to a swift ban from entering Canada for five years.
Examples of misrepresentation include:
- An applicant provides a document which has been forged or altered to contain information that aligns with IRCC requirements.
- An applicant neglects to mention family members who intend to join them.
- An applicant chooses not to declare convictions or criminal charges, even those that occurred many years earlier.
- An applicant lies about their employment history in an attempt to secure a job in Canada.
- An applicant fails to declare that they were refused entry to other countries.
If IRCC or CBSA believe your application can be considered misrepresentative, they will send you a Procedural Fairness Letter (PFL) before they reach a final decision regarding your case.
The process for finding a migrant inadmissible for immigration misrepresentation requires that the foreign national or permanent resident first be provided with the opportunity to respond to the allegations, which should be set out either during an interview with a decision maker or in a Procedural Fairness Letter (PFL). If the allegations are set out in a PFL, the foreign national will be given a specific amount of time to respond on paper or in very limited circumstances by interview.
Where the application was made outside of Canada, the foreign national or permanent resident must provide a response to the Visa Officer who identified the potential misrepresentation. The Visa Officer will then assess these submissions and make a final decision. If the finding of misrepresentation stands, then the applicant will receive a 5-year bar on re-application. Comparatively, if the foreign national or permanent resident makes the application from within Canada, then they must address their reply to IRCC (or at times the CBSA).
If after reviewing these submissions the officer continues to believe that the foreign national or permanent resident has misrepresented themselves, they could be required to attend an interview with IRCC or the CBSA, followed in certain circumstances by a hearing before the Immigration Division, where a removal order may be issued.
Permanent residents may in some cases appeal this removal order to the IAD. Everyone else can challenge the removal order at the Federal Court. The 5-year bar will commence once the foreign national or permanent resident is removed from Canada.
What is a Procedural Fairness Letter?
An immigration officer sends a PFL to notify an applicant of serious issues with their application. In the case of misrepresentation, an officer may believe that information has been falsified or omitted by accident or design.
However, don’t be disheartened if you receive a Procedural Fairness Letter: it doesn’t mean the officer will definitely refuse your application. You can send a response to argue your case.
How to Respond to a PFL
You should write a clear, comprehensive response to a PFL. That can be difficult when your emotions are running high and you feel frustrated about a potential ban. But an effective letter can make a significant difference to your application.
However, it’s highly recommended that you get competent and experienced counsel. Immigration lawyers can craft a compelling response to a PFL that clarifies the reasons for any errors or omissions. Legal counsel will help you understand the immigration officer’s concerns, the likelihood of a refusal, and other relevant factors. Legal arguments can carry the day in innocent misrepresentation cases and lead to application approval.
Potential Remedies for Misrepresentation
If you are facing misrepresentation allegations, you might have the following options:
- Challenge the decision to the Federal Court (i.e. Judicial Review)
- Apply for an Authorization to Return to Canada if you have received an Exclusion Order due to misrepresentation
- Apply for a Temporary Resident Permit to be able to come back to Canada for a limited time (usually between one day to three years)
- Sometimes you could apply for immigration under the H&C program.
How to Find Experienced Immigration Lawyers in Toronto
Abramovich & Tchern are immigration lawyers with years of experience in helping clients from all over the world. We’ve worked with applicants from India, Latin America, the US, the former Soviet republics, and beyond.
Individuals, established businesses, and hard-working families looking to start a new life in Canada have all trusted Abramovich & Tchern for dedicated advocacy. We can provide our services in a range of languages through professional interpreters.
If you want expert assistance in responding to a Procedural Fairness Letter, our lawyers are ready to help you. Contact Abramovich & Tchern to learn more today!