Tell the Truth
Legal & Immigration Misrepresentations
For whatever reason, recently I have received many new inquiries from clients seeking assistance because allegations have been made against them of misrepresenting details on their immigration applications.
As each of these clients will tell you, Immigration, Refugees, and Citizenship Canada (IRCC) takes misrepresentation (or lying) incredibly seriously. Before I go into some details below, let me give three key points of advice for people applying for immigration in Canada:
- DO NOT LIE.
- DO NOT LIE.
- DO NOT LIE.
At the end of every immigration form, you need to sign below a statement that says, “I declare that I have answered all questions in this application fully and truthfully.” If you lie, then you have not done so.
Secondly however, lying or misrepresenting on an immigration application raises a whole slew of issues, including the fact that it brings into question your credibility on the current and any future applications. This can follow you on subsequent applications, especially those where credibility is at issue.
More significantly, it may result in a five year ban from applying for any future immigration programs in Canada.
The need to be truthful is set out clearly in the Immigration and Refugee Protection Act (IRPA), which notes at section 16:
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.
If it is found that you have engaged in any sort of misrepresentation, then the consequences will create obstacles for future immigration opportunities. These consequences are codified in section 40 of the IRPA, which states:
40(1): A permanent resident or a foreign national is inadmissible for misrepresentation
- 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
40(2): The following provisions govern subsection (1):
- The permanent resident or foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of determination in Canada, the date the removal order is enforced.
What it means
Misrepresentation can be one of many things. It can mean outright lying about something from your past, and it can also mean withholding or omitting to declare something that is relevant to your immigration matter. It is thus an error of commission (doing something) or omission (not doing something), and either way, it can leave a nasty mark on your immigration file. It may include statements made to IRCC, or documents that were fraudulently prepared or obtained that were subsequently submitted as part of an application. Such documents can include fraudulent employment letters, bank statements, or ownership documents.
Here are some examples of misrepresentation allegations that I’ve recently dealt with:
- Travel History
Many immigration forms ask this series of questions:
- Have you ever remained beyond the validity of your status, attended school without authorization or worked without authorization in Canada?
- Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?
- Have you previously applied to enter or remain in Canada?
It is critical that these questions are answered truthfully. If you are not sure how to answer them, contact an immigration lawyer. These questions may relate to travel history in Canada, and obviously IRCC has the answer of their own that they can double check. The answer you give must correlate to the information they have. However, Canada also has information-sharing arrangements with other countries, like the United States, and they can easily get this information that way too.
In a recent file, my client submitted their own application for a visa to come and visit family in Canada. She indicated that “no”, she had never been refused a visa from any other country. A few months later she received a procedural fairness letter from IRCC, noting their belief that the applicant omitted a refusal from their history. The letter was vague, I believe, so as to see whether the applicant could recall which refusal they had missed, or which country it had come from.
I reviewed the matter with my client, and she recalled that about 30 years ago, she had once been refused an American visa. We put together a responding affidavit, noting the significant passage of time and the fact that she had travelled into the United States several times after the initial refusal. It was clear to me that the client had made a mistake. IRCC accepted our explanation, and issued the visa.
In another case, a prospective client reached out to me because she answered that she had never been refused a visa to Canada before, but she had. She had received a procedural fairness letter, and admitted that the reason she said no was because she thought the application would be refused if she said yes. By the time she had consulted with me, her application had already been refused, and she had been determined to have misrepresented and was subject to the five-year bar. The officer had little choice, because she admitted to lying. She asked about the merit of a judicial review to challenge the underlying refusal, but my advice was that it made no sense to spend time since the officer had very little discretion to grant the application, in light of an admission of a misrepresentation. He had no choice but to refuse.
This was an unfortunate set of circumstances that could have been avoided by a consultation with a lawyer. It also bears noting that just because you say yes, does not mean that your application will automatically be refused. Better to have the application refused and be given an opportunity to apply again, than to misrepresent, and be barred from Canada for five years.
- Criminal History
Many immigration forms also ask: “Have you ever committed, been arrested for or been charged with or convicted of any criminal offence in any country or territory?”
This is a straightforward question. Unfortunately I get lots of inquiries about this issue. Recently, a client advised that they answered no to the above question, because they had had their record expunged. But that is not what the question asks. Another time, someone said that they had not been convicted of an offence, so they indicated no. But the question clearly asks if you’ve ever been arrested or charged, and not just convicted.
There is ample case law about this matter. It does not matter if you have been pardoned, if your record has been expunged, or if the charges against you were ever dropped. If the answer to the above question is yes, then you must answer in the affirmative. Importantly, you will have an opportunity to provide an explanation, and just by answering yes does not automatically mean that you put your application in jeopardy.
- Language test
Unfortunately, I had a situation last year where two siblings took a language test in Vietnam from an institution that was apparently fraudulent. They passed their exam, and submitted the results as part of their permanent residency applications. Not long afterwards, they received a note from IRCC indicating that they believed they had submitted fraudulent documents, i.e. their language results.
We responded to the procedural fairness letter providing an affidavit and details to the best of the applicants’ knowledge about the testing facility and the way they procured their results. Unfortunately however, there had been ample information about this particular testing centre in the news in Vietnam, and IRCC concluded that this had not been an oversight or innocent mistake made by the clients, but that they ought to have known that these results were fraudulent. They were determined to have misrepresented, and were barred from Canada for a period of five years.
There are some exceptions to the strict rules of misrepresentation, namely innocent misrepresentation.
Innocent misrepresentation means that you lied but did not mean to. For example, if you said that you had never been charged with a criminal offence, but you had in fact, and never been advised of the same, then that would be an innocent misrepresentation.
There is a legal test however to determine if something was an innocent misrepresentation. It is meant to determine whether an applicant honestly and reasonably believed that they were not withholding information. The two part test is:
- A subjective test where the decision-maker must ask whether the “person honestly believed that he is not making a misrepresentation”; and
- An objective test where the decision-maker must ask whether “it was reasonable on the facts that the person believed that he was not making a misrepresentation.”
The above is offered as guidance, and not as legal advice to be relied on in any submissions. That being the case, this is a brief overview of the law of innocent misrepresentation, and it is important to consult with a lawyer to see if this assertion would apply to your case.
A successful immigration application can change one’s life. It can give someone an opportunity to travel to a new country, study in a world-class Canadian educational institution, get permanent residency, or make a successful refugee claim in this wonderful country. It is thus important not to jeopardise your application by misrepresenting any material information.
If you are completing an application that you have questions about, if you realize after an application has been made that you may have misrepresented, or if you have received a procedural fairness letter from IRCC, it is imperative that you seek appropriate legal counsel immediately. It can make the difference between a successful or a failed application, and it is easier to fix before a final decision is made, than after.