The definition of misrepresentation under Canada’s Immigration law is very broad. Some court cases state that even unintentional misrepresentations are the subject of penalties such as a ban from entering Canada for two years. Such unintentional misrepresentations include the failure of a father to declare the existence of a child when obtaining his permanent resident visa.
The text of the law of for misrepresentation is contained in the Immigration and Refugee Protection Act as follows:
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;
The above section does not require “spontaneous disclosure” of all information or evidence. But there may be an obligation to disclose information or to produce relevant evidence in certain circumstances, given other parts of Canada’s immigration law. For example, section 16(1) of the Act provides that “[a] person who makes an application must answer truthfully all questions put to them for the purpose of the examination and 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.”
In Baro v. Canada (Minister of Citizenship and immigration), 2007 FC 1299 at para. 15, the Federal Court recognized that a foreign national seeking to enter Canada has a “duty of candour” which requires disclosure of material facts. The Federal Court also mentioned:
Even an innocent failure to provide material information can result in a finding of inadmissibility; for example, an applicant who fails to include all of her children in her application may be inadmissible: Bickin v. Canada (Minister of Citizenship and immigration), [2000] F.C.J. No. 1495(F.C.T.D.)
However, there is an exception arises where applicants can show that they honestly and reasonably believed that they were not withholding material information as can be seen in the case of Medel v. Canada (Minister of Employment and immigration), [1990] 2 F.C. 345, [1990] F.C.J. No. 318 (F.C.A.) (QL).
In Medel, the non-disclosure in question was the fact that the appellant did not tell the immigration officer that the Embassy issuing the visa had requested its return on the ground that it contained an error which the Embassy wanted to correct. The Embassy failed to tell Medel the true reason for the request, namely the withdrawal of the sponsorship by the appellant’s spouse. The Federal Court of Appeal concluded that the appellant was subjectively unaware that she was holding back anything relevant to her admission, and that this belief was reasonable when all the circumstances were considered objectively. The Court noted that this finding might have been different had the Embassy told her the truth. It can be seen that this case is very unusual, given the lack of candour on the part of
the visa office.
Similarly, Baro (mentioned above) also said that the applicants don’t have to, and are not expected to anticipate the kinds of information that immigration officials might be interested in receiving, stating, “there is no onus on the person to disclose all information that might possibly be relevant”, but the decision maker must look at the surrounding circumstances to decide whether the applicant has failed to comply with s. 40(l)(a).
Sometimes, a visa officer discovers a misrepresentation and confronts a visa applicant about it. Can the person seeking the visa confess and remove the misrepresentation? Unfortunately, no. The case of Khan v. Canada mentions that Paragraph 40(1)(a) is written very broadly in that it applies to any misrepresentation, whether I direct or indirect, relating to a relevant matter that induces or could induce an error in the administration of the Act. The court mentioned that judges must respect the wording of the Act and give it the broad interpretation its wording demands. The decision concluded that there is nothing in the wording of section 40(1)(a)indicating that it should not apply to a situation where a misrepresentation is adopted, but clarified prior to a decision being rendered.
However, a misrepresentation that was not the fault of the applicant and not material to the administration of Canada’s immigration laws and was corrected before a decision was made, was deemed to not to be a material misrepresentation as per the case of ali Anwar Ali v MCI 2008 FC 166.
As can be seen above, every case is very unique. Small differences within a case may lead to a different conclusion on the issue of whether or not someone has committed a misrepresentation of fact that could bar entry to Canada.
