Catherine Sas, K.C.There is perhaps no more challenging issue to grapple with in immigration practice than that of misrepresentation.
People often ask me what the most serious immigration infraction is. They expect that I will say something like, “working illegally, living underground without status, or being deported” but actually it’s the consequences for misrepresentation. The Immigration Refugee Protection Act (IRPA) sets out the criteria for misrepresentation as well as the penalties which are significant and can include loss of status, permanent separation from family members, fines and even jail time. Furthermore the trend in the past few years for Canada Immigration is a zero tolerance policy towards misrepresentation with penalties likely to increase.
Section 16 of IRPA specifically states that a person must answer all questions truthfully. Section 40 defines misrepresentation as follows:
- 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;
If you or somebody acting on your behalf directly or indirectly submits false information, false documents, or misrepresents facts relating to any aspect of your application, your application may be refused, you can become ineligible to submit an application for any immigration process for a period of 2 years and a permanent resident can lose their permanent resident status after the fact for finding of misrepresentation.
An indicator of how seriously the Minister of Immigration considers misrepresentation is found in Bill C-43, proposed new legislation entitled, “The Faster Removal of Foreign Criminals Act.” It is very telling that legislation pertaining to criminals also applies to permanent residents who are found to have been dishonest. Misrepresentation is likened to criminal behaviour! This legislation seeks to increase the period from 2 years to 5 years that a foreign national continues to be inadmissible for misrepresentation. If passed, this will mean that a person can’t even apply to come to Canada for a period of 5 years! What is misrepresentation? The Oxford English Dictionary states as follows, “the action or offence of giving a false or misleading account of the nature of something.” Other terms for misrepresentation include to lie, cheat, deceive or conceal.
Section 40 of IRPA also provides that misrepresentation includes the with-holding of information. With-holding material facts relating to a relevant matter whether or not the question has directly put to you can result in a finding of misrepresentation. Section 40 is very broad and speaks to, “a relevant matter that induces or could induce an error in the administration of this act.” This creates a duty for people to be forthright and disclose all relevant information. You can also be held accountable for indirect misrepresentation. You may be found to have misrepresented on the basis of what you or another person says or doesn’t say on your behalf. Situations of indirect misrepresentation can be truly difficult to resolve. This means that you need to be candid on all aspects and phases of all of your immigration application.
How do you know when something is relevant or material? A good guide is that if you have to ask whether it is relevant or material it probably is. It is better for you to disclose something to an immigration officer and let them decide how to handle it than to keep quite in the hopes that it doesn’t really matter. What are the types of things that people fail to disclose? Criminal convictions, children from previous relationships, spousal relationships and employment are some examples. The circumstances are really endless.
It is not only individuals who face consequences for dishonesty in the immigration process. Section 126 of IRPA states the following:
“Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.”
An immigration advisor whether a lawyer or an immigration consultant can be subject to criminal conviction for counseling misrepresentation. If your immigration representative advises you to include inaccurate information on you application, stop working with them immediately!
The penalties for misrepresentation can be severe. A person can face a fine of up to $100,000 fine or imprisonment for a term of up to 5 years in prison. Under 117(9)(d) of the Regulations, failure to disclose the existence of family members at the time of a permanent resident application results in a permanent bar to ever being able to bring your family members to Canada. There is no way to remedy a s.117(9)(d) determination other than making a discretionary application on humanitarian and compassionate grounds which are frequently refused.
The message is clear. You need to be honest, truthful, and candid in all aspects of your personal history when submitting an application for permanent residence to Canada.
