Applicant’s Obligation to be truthful:
Under subsection 16(1) of the IRPA, the Applicant is under the obligation of providing true information upon examination and to produce all reasonable documents required by the officer.
Inadmissibility for Misrepresentation:
Section 40 of the IRPA outlines specific grounds under which an individual may be deemed inadmissible due to misrepresentation.
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;
(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;
(c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or
(d) on ceasing to be a citizen under
(i) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force,
(ii) subsection 10(1) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act, or
(iii) subsection 10.1(3) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act.”
Subection 40(1)(a) includes scenarios where a permanent resident or foreign national engages in direct or indirect misrepresentation or withholds material facts related to a matter that could potentially lead to an error in the administration of the Act. Moreover, under subsection 40(1)(b), inadmissibility extends to those sponsored by individuals determined to be inadmissible for misrepresentation. Additionally, under subsections 4(1)(c) and 4(1)(d) a final determination to vacate a decision granting refugee protection or protection application, as well as ceasing to be a citizen under specified circumstances in the Citizenship Act, can trigger inadmissibility.
Applicant’s Right to be Heard:
In light of the procedural fairness mandated by the Supreme Court of Canada in Baker v. Canada, and the IRCC Guidelines on Procedural Fairness, the Applicants have a right to be heard before a decision can be made by an officer regarding their inadmissibility.
Procedural Fairness Letter:
The process of determining the inadmissibility due to immigration misrepresentation involves providing the foreign national or permanent resident with an opportunity to respond to the allegations. This can occur either through an interview with a decision maker or via a Procedural Fairness Letter (PFL) outlining the accusations.
The PFL outlines the concerns raised by the authorities, such as potential inadmissibility factors or discrepancies in the application, and allows the applicant to submit additional information, clarification, or evidence in their defence. It is a fundamental element of fairness in the immigration process, ensuring that individuals have the chance to present their side of the story and participate in the decision-making process that impacts their immigration status.
In cases where a PFL is utilized, the foreign national is granted a specific timeframe to provide a written response or, in limited instances, participate in an interview.
If the application was submitted outside of Canada, the foreign national or permanent resident must furnish their response to the Visa Officer who identified the potential misrepresentation. The Visa Officer will then evaluate the response and render a final decision.
On the other hand, if the application is made within Canada, the response should be directed to IRCC (or occasionally the CBSA). Following the review of the response, if the officer maintains the belief that misrepresentation has occurred, the foreign national or permanent resident might be compelled to undergo an interview with IRCC or the CBSA. Subsequently, a Report on Inadmissibility under Section 44 of the IRPA may be issued, leading to a hearing before the Immigration Division, where a removal order could be issued. Permanent residents, in certain instances, may appeal this removal order at the Immigration Appeal Division, while others can contest it in the Federal Court.
How to respond to a Procedural Fairness Letter:
As mentioned above, the Procedural Fairness letter is a way of providing the applicant a right to be heard. Therefore, in response to this letter one may address all the concerns of the officer, along with providing additional documents supporting their application, admit their application’s mistake and suggest alternative paths of TRP or H&C considerations, or withdrawing their application.
Consequences of Misrepresentation:
Firstly, an individual found inadmissible for misrepresentation continues to be inadmissible for a defined period – five years. This period begins either from the determination made outside Canada or, in the case of a determination in Canada, from the date the removal order is enforced. Importantly, the application of paragraph 40(1)(b), referring to being sponsored by an inadmissible person, is contingent upon the Minister’s satisfaction that the case’s facts justify such inadmissibility.
Moreover, Individuals who intentionally counsel, induce, aid, or attempt to aid in the misrepresentation or withholding of material facts concerning matters relevant to the Immigration and Refugee Protection Act commit an offence, as outlined in Section 126. This provision addresses actions that could directly or indirectly lead to errors in the administration of the Act.
Section 127 expands on this by prohibiting the knowing misrepresentation or withholding of material facts that might induce errors in the Act’s administration. It also expressly forbids the communication of false or misleading information to influence immigration to Canada. Furthermore, individuals are prohibited from refusing to cooperate during examinations or proceedings conducted under the Act.
Consequently, Section 128 specifies the severe penalties for contravention. Those convicted on indictment may face fines of up to $100,000 or imprisonment for a maximum of five years, or both. Alternatively, for summary conviction, penalties include fines of up to $50,000 or imprisonment for a maximum of two years, or both. These stringent measures underscore the gravity of offences related to misrepresentation under the Act, emphasizing the commitment to maintaining the integrity of immigration processes in Canada.
Remedies Available:
In the event of misrepresentation allegations, you may consider the following courses of action:
- Contest the decision through a Judicial Review at the Federal Court.
- Seek Authorization to Return to Canada if you’ve received an Exclusion Order based on misrepresentation.
- Apply for a Temporary Resident Permit, allowing you to return to Canada for a restricted period, typically ranging from one day to three years.
- Explore the possibility of immigration under the Humanitarian and Compassionate (H&C) program in certain situations.
Causes of Misrepresentation Inadmissibility:
Misrepresentation inadmissibility, often caused by inadequate application quality or negligence, underscores the critical importance of seeking legal assistance. When individuals fail to provide accurate and truthful information during the immigration application process, they risk serious consequences, such as denial of entry, removal orders, or bans on returning to Canada. Commonly arising from unintentional errors, misunderstandings, or incomplete disclosures, misrepresentation can result in severe legal implications.
Legal professionals specializing in immigration law possess the expertise to navigate the complexities of misrepresentation cases, ensuring that applicants understand the gravity of the allegations and can present a robust defense. With their guidance, individuals can address procedural fairness letters, respond effectively to immigration authorities, and pursue legal avenues to challenge decisions, safeguarding their immigration status and future opportunities in Canada.
In essence, the potential repercussions of misrepresentation underscore the need for legal support. Lawyers well-versed in immigration law can assist applicants in rectifying errors, addressing allegations, and navigating the legal process, ultimately helping them protect their interests and maintain a positive immigration status in Canada.
Conclusion:
Misrepresentation inadmissibility is a nuanced aspect of Canada’s immigration system with far-reaching consequences. Section 40 of the Immigration and Refugee Protection Act (IRPA), outlines grounds for inadmissibility due to misrepresentation. Procedural fairness, highlighted through the issuance of Procedural Fairness Letters (PFL), ensures applicants the right to be heard in response to allegations.
The severity of misrepresentation consequences, including inadmissibility for a defined period and potential criminal charges under Sections 126, 127, and 128, underscores the gravity of such actions. In essence, the complexities of misrepresentation highlight the necessity of legal support, ensuring fairness, integrity, and just outcomes within Canada’s immigration system.
At Kozyrev Law, we understand the profound impact that misrepresentation inadmissibility can have on individuals navigating Canada’s immigration system. Our specialized immigration legal services are tailored to address the complexities outlined in this comprehensive article. We recognize the importance of accurate and truthful information in residency applications, and our team is dedicated to guiding clients through the intricacies of misrepresentation cases. From responding effectively to Procedural Fairness Letters to pursuing legal avenues such as Judicial Review or seeking Authorization to Return, our expertise ensures that individuals can safeguard their immigration status and explore opportunities in Canada. Kozyrev Law is committed to providing robust legal support, offering a strategic approach to navigate the challenges posed by misrepresentation allegations, and securing positive outcomes for our clients within the framework of immigration law.
Note: The information presented in this article is not intended to constitute legal advice. It is recommended to refer to official government publications and guidelines for accurate and up-to-date information. For obtaining legal advice tailored to the specific circumstances of your case, it is advised to consult with a qualified professional.
FAMILY LAWYER SERVING ALL OVER GTA
