Catherine Sas, K.C.One of the most onerous, harsh and negative provisions in Canadian immigration law is a misrepresentation determination. A finding of misrepresentation comes with a five-year ban of applying to come to Canada. What options do you have when a misrepresentation determination has been made against you?
Firstly, you should know just how broad this legal provision is. It covers things that you may not even be aware of (but probably should have or could have been!). S. 40 of the Immigration and Refugee Protection Act (IRPA) defines what constitutes misrepresentation.
s. 40(1)(a) a foreign national or permanent resident is inadmissible 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 penalty for misrepresentation is set out in subsection 2:
s.40(2) The following provisions govern subsection (1):
(a) the permanent resident or the 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 a determination in Canada, the date that the removal order is enforced;…
This means that if you are outside of Canada, the five-year period commences from the time of the decision whereas if you are inside of Canada the time period starts from the time you leave Canada.
SEEKING JUDICIAL REVIEW IN THE FEDERAL COURT
As in all immigration decisions, one option is to challenge the finding in Federal Court. This is not an easy option and it is generally a very expensive one. A Judicial Review application can only be filed by a lawyer (or a self-represented applicant which is not recommended) and it requires extensive written submissions and arguing the case in Court if the case is granted leave. More importantly, the likelihood of success is low. The law is very broad in that the misrepresentation can be direct, or indirect – it does not require your specific intent. If there is information relevant to the application you were making that was not disclosed, the misrepresentation finding will be found valid. Legal action is not always the best course of action. (For a more detailed explanation of Federal Court Judicial Review applications please see our Blogs entitled “When your immigration application is refused: Options for dealing with a refusal” and “Challenging a Refusal of an Immigration Application: Appeal, Judicial Review or Apply Again?”).
APPLYING FOR AN AUTHORIZATION TO RETURN TO CANADA (ARC) AND A TEMPORARY RESIDENT PERMIT (TRP)
The dynamic duo to overcome inadmissibility findings such as misrepresentation is to apply for an Authorization to Return to Canada (ARC) together with a Temporary Resident Permit (TRP) which is a permit to overcome inadmissibility. However, let’s be frank…a misrepresentation finding is essentially a finding that the visa officer has determined that you did not tell the truth! Being dishonest in the immigration process is one of the most serious offences. You can overcome medical or criminal inadmissibility but how do you regain a visa officer’s trust? While an ARC/ TRP application is an option, it is not to be turned to immediately and will depend upon the circumstances of your case. Please refer to our blog “Honesty is the Best Policy”.
WAITING IT OUT!
While this is usually the least favourite option, it is often the best option. As mentioned above, you will need to demonstrate to a visa officer that you can be trusted and will be truthful in future immigration applications. Re-building trust takes time. While five years is a long time, it is not forever. What you do during that five years, can be very constructive and have significant positive implications for your family.
A misrepresentation finding, or any inadmissibility finding, is not only applicable to the person concerned, but to all family members in a permanent residence application (not the same for a temporary application such as a work or study permit). So if Canadian permanent residence is the goal for your family members, then ALL family members need to be admissible to Canada.
Any experience in Canada such as obtaining your education or work experience, does not go away. It remains solid. So focus on what can be done during the five year period to enhance your ability to apply for permanent residence in the future. Obtain further education in an English or French speaking country to maintain your language skills. Gain further high skilled work experience that will increase your point scores in the Express Entry program. Demonstrating that you are committed to improving yourself through education and/or work experience shows a visa officer that you are dedicated to becoming a Canadian permanent resident.
A misrepresentation finding is a setback, but it is not fatal. Think of the Canadian sport of hockey – you are in the penalty box but you are not permanently banned from the sport! You have five years to determine how you can best enhance your chances of returning to Canada in the future.
