The misrepresentation of a material fact to Canada’s immigration Department has various penalties.  On the lower end of the spectrum, a finding of misrepresentation in a pending visa application could lead to a ban from entering Canada for two years (although there is a remedy for that).  The harshest penalty comes when a person failed to indicate the existence of a close relative such as a child or spouse or common-law partner during the course of applying for a visa.  Cases such as these are often attempted “family class” cases, where the person who failed to declare the close relative, subsequently tries to sponsor that relative.  Upon the immigration department’s discovering the failure to declare, the sponsor is barred from sponsoring under regulation 117 subsection 9 subsection (d) of the immigration and refugee protection regulations (“117(9)(d))”.

The fact that the misrepresentation was entirely unintentional (e.g. if the father of a child did not even know of the existence of the child until after he gained permanent resident status) is deemed irrelevant by the Canadian immigration department; the non-declaration before landing is the main determinant.  In cases which fall under 117(9)(d), the person can no longer be sponsored (the misprepresenting party himself may also be subject to deportation proceedings, but that is another matter).

A particularly tragic situation is when there is a child who was undeclared; the child has been taken care of by her aging grandparents or other relative.  The elderly grandparents are too old to take care of the growing child, and the child suffers from psychological problems owing to the lack of contact with the parent in Canada.  A sponsorship is filed, but is refused to the non-declaration of the child.

The remedy in such cases is the filing of a humanitarian and compassionate application for permanent residence.  Issues that have to be addressed include the background to non-declaration of the relative, as well as whether there are compelling reasons to excuse the non-declaration, such as the well-being of a child.

Often, misrepresentations occur when a person is self represented during the course of their application, and some material change occurs during the course of the processing of the case (e.g. the person gets married, or has a child).  That material change is not disclosed to the immigration department, and the immigration Department issues a visa.  The person passes through the port of entry and does not mention the addition to her family.  People who make such a misrepresentation often say something after the fact that  “my friend did the same thing and nothing happened to her.”

The main purpose of having laws against misrepresentation especially if children are involved is to ensure that the concerns of Canada’s Immigration Act (such as whether people are medically admissible or criminally admissible) are addressed.  In the case of a child who was undeclared, immigration Canada’s view is that the child should have been medically examined so as to ensure that the child would not be a burden on Canada’s health or social services.  In the case of the non-disclosure of a spouse or common law partner, Canada’s immigration officers could say quite rightly, “Had I the visa officer known that Bob Smith had a wife before marrying his sponsor (i.e. the person that sponsored Bob Smith for immigration), Bob Smith himself would never have obtained his own permanent resident visa.”

On the other hand there are situations where, for example, a person who applied for a work permit as a live-in caregiver.  During the work permit processes, the person never declared the existence of her marriage.  She gets landed as a permanent resident based on working as a live-in caregiver for two years.  In this situation, the person’s failure to disclose doesn’t look quite as bad, since this person would have obtained her landed status on the basis of something other than marriage.

Immigration Canada’s response to the harshness of the penalty (i.e. the inability to sponsor that non-declared relative ever), is that there exists the path of humanitarian and compassionate applications.  However, the reality is that those cases often compass so many facts, and are subject to a huge amount of discretion by immigration officers, that the H&C path is a very challenging one for even the most experienced Canadian immigration lawyers.

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