Inadmissibility due to Misrepresentation – Legal Barriers to Canadian Immigration

If you are considering or actively taking steps to immigrate to Canada, you may read this and think, “Not me! This can never happen to me. Only a fraudulent applicant or a liar can fall into this category.”

Well, you will be right  – to an extent….

There are about six (6) main categories of persons who are deemed inadmissible to Canada under the Immigration and Refugee Protection Act (IRPA), ss. 33-43. These are:

(i) persons deemed inadmissible on security grounds,  including espionage, subversion, violence or terrorism, membership in an organisation involved in any of these acts;

(ii) persons deemed inadmissible for war crimes or crimes against humanity grounds, including being a senior official in a government engaged in gross human rights violations or subject to international sancions;

(iii) persons deemed inadmissible on criminal grounds, including but not limited to, committing a serious crime that would be punishable by a maximum prison term of at least 10 years in Canada, organized crime, conviction of a crime including driving while under the influence of drugs or alcohol;

(iv) persons deemed inadmissible on medical grounds, that is, where the health condition of the applicant is likely to endanger public health and safety or cause excessive demands on health or social services;

(v) persons deemed inadmissible on financial grounds, that is, where the applicant is unable or unwilling to support themselves and their family members;

(vi) persons deemed inadmissible on the grounds of having an inadmissible family member; and

(vii) persons deemed inadmissible on the grounds of misrepresentation, including but not limited to, providing false information or withholding information directly related to decisions made under theIRPA (Section 40 of the IRPA)

An applicant to any of the immigration programs listed below can be deemed inadmissible on the grounds of misrepresentation regardless of whether the application was made abroad, at a port of entry or from within Canada:

• Permanent residence applications;
• Visas for permanent resident status;
• Temporary residence applications;
• Work and Study permit applications; and
• Renewals and extensions of status by persons already inside Canada

Most decisions declaring a foreign national inadmissible on the grounds of misrepresentation are made at these application stages.

It is mandatory for most foreign nationals seeking entry into Canada either as a temporary or permanent resident to apply for and obtain a visa, unless they are exempted from that requirement by the Immigration and Refugee Protection Regulations (the “Regulations“).

As part of their visa application, the foreign national is required to complete an application form containing a series of statutory questions, including but not limited to, (i) whether or not the applicant has been denied a visa to Canada or any other country; or (ii) whether the person has been convicted of any criminal offences; or (iii) whether the person has been deported from or refused entry into Canada or any other country; or (iv) whether the person has been engaged in any other activities that would render them inadmissible into Canada.

If a person answers any of the above questions in the affirmative, a thorough investigation will be carried out by the visa office to determine admissibility. Where the person answers in the negative but, on further investigation, is found to have either directly or indirectly misrepresented or withheld material information in their application, a decision of inadmissibility on the grounds of misrepresentation may be made against the applicant.

The next stage in the immigration process where a foreign national may be deemed inadmissible on the grounds of misrepresentation is at the port of entry. Being issued a visa to Canada does not guarantee you automatic entry into Canada. The IRPA requires  that persons seeking admission into Canada as temporary or permanent residents must be examined by an officer at the point of entry. The officer determines whether or not to grant the person entry into Canada. Where the officer at the port of entry believes that the person seeking admission into Canada is inadmissible, a report is written setting out his or her opinion and rationale for the decision. The Minister (or his delegate) must then determine whether an admissibility hearing will be held to determine whether or not the person is, in fact, inadmissible to Canada.

It should be noted here that it is very rare for a person seeking admission into Canada as a temporary or permanent resident to be declared inadmissible on the grounds of misrepresentation at the port of entry. Usually, these kinds of decisions are made at the application stage.

Every potential visitor or immigrant to Canada bears the potential risk of being deemed inadmissible due to misrepresentation  each time an application is made to the Immigration, Refugees and Citizenship Canada (IRCC) offices if proper care and attention is not given to the application.

Little wonder then, that this is a fairly common ground on which the IRCC deems potential applicants inadmissible into Canada. In 2017, there were a total of 2,111 admissibility hearings in Canada, 450 of those were in relation to allegations of foreign nationals or permanent residents who have been charged with misrepresentation. These figures do not include the number of foreign nationals whose applications were rejected by the visa processing officers on the grounds of misrepresentation.

Section 40(1) of the IRPA sets out four circumstances in which a person can be inadmissible on the grounds of misrepresentation. I will consider three of these circumstances below:

• where a person directly or indirectly misrepresents or withholds a material fact relating to a relevant matter that induces or could include an error in the administration of this Act.

There must be a direct or indirect misrepresentation or a withholding of material information.

For instance, an applicant while filling out his application form is asked whether or not he had ever been denied a visa by Canada or any other country. The applicant is aware that he had been denied a U.S.A visa some years prior, but chooses not to disclose it. That is a direct misrepresentation.

Where an applicant withholds material information in his or her application such as a previous relationship, the applicant can be deemed inadmissible on the grounds of misrepresentation. (Wang v. Canada (2005) F.C. 1059)

Or where an applicant who had ordered a police certificate and a certified translation  from his home country but did not compare the original police certificate with a certified translation before submitting both copies to the IRCC, where an error is found by the visa office, the applicant can be found to have indirectly misrepresented a material fact.

An applicant’s failure to disclose family members has also been deemed to constitute grounds for a finding of misrepresentation.  In Ouk v. Canada, 2007 FC 891, the applicant, a Canadian citizen, got married in Cambodia and sought to sponsor her husband as a member of the Family Class. In the Sponsorship Questionnaire, her husband listed five siblings, but upon further investigations, the visa officer found out that the husband actually had seven siblings. The sponsorship application was denied, in part on the inconsistent number of family members. At the Immigration Appeals Division (IAD) hearing, the applicant provided evidence that the discrepancy was primarily due to a family dispute and that the applicant did mot consider a “half-sister” to be part of his family. The IAD dismissed the appeal, however, the Federal Court held that the IAD had a duty to look into the nature of the relationship.

• where a person is sponsored by a person who has been deemed inadmissible for misrepresentation.

This simply means that a person who was sponsored by another person who was a permanent resident can be deemed inadmissible for misrepresentation if their sponsor is found to have misrepresented in order to obtain residency in Canada. The Minister, however, has the discretion to consider, on a case by case basis, whether or not to impose inadmissibility on the sponsored person.

• where a person is deemed to have obtained their citizenship by misrepresentation or fraud.

The Minister is allowed,  when considering whether or not a person obtained citizenship by fraud pursuant to s. 10(2) of the Citizenship Act, to look at not just the application for citizenship but also the permanent residence application itself.

So,  how can you avoid being deemed inadmissible on the grounds of misrepresentation either as a temporary visitor, worker, permanent resident or citizen?

First, be truthful!

State all information in your application, whether or not you think it is irrelevant. Its not your job to decide what is relevant or not; its the job of the visa processing officer! Canadian immigration laws are quite strict on misrepresentation. In the case of Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, the applicant, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal. While filling out his immigration forms, he stated that he had never been charged or arrested.  When the visa processing officer discovered this inconsistency, a procedural fairness letter was sent to Mr. Bundhel providing him an opportunity to explain his misrepresentation. His explanation that it was an innocent mistake was not acceptable to the visa processing officer and his application was refused. He was also declared inadmissible to Canada for misrepresentation. The Court upheld the visa officer’s decision.

Second, double and triple check your forms before submitting. Better still, have a third party review your application. You will be surprised at the errors and omissions that may be discovered by a fresh eye.

Third,  when in doubt, ask an expert.