We have previously written on the topic of being inadmissible to Canada for various reasons. One of the more common reasons in Canada that someone can be denied a work permit or permanent resident application is if they misrepresent themselves in their application for immigrating to Canada. The deliberate misrepresentation of an important or significant fact about oneself is something that seems fairly understandable as a reason to deem someone inadmissible to Canada. But what about a situation where the misrepresentation is made in good faith by someone attempting to submit an application to the best of their knowledge and understanding of the requirements of the application procedures?
This was the issue that the courts had to grapple with in the recent case Kangah v. Canada (Public Safety and Emergency Preparedness), where the applicant had received what’s known as an “exclusion order” for allegedly misrepresenting a “material fact” about herself in an application for a work permit. The applicant appealed the decision to the Federal Court of Canada, arguing that the decision was incorrect because the misrepresentation was the result of strictly following the explicit guidelines and instructions that Immigration, Refugees and Citizenship Canada (IRCC) provides for individuals in her particular situation.
Circumstances Which Can Prompt a Finding of Misrepresentation
Under Section 40(1) of the Immigration and Refugee Protection Act, a permanent resident or foreign national is inadmissible to Canada on the grounds of misrepresentation in the following circumstances:
- if they 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; or
- if they were sponsored by a person who is determined to be inadmissible for misrepresentation; or
- on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or
- on ceasing to be a citizen (for various possible reasons under the Canada Citizenship Act).
It is important to note with respect to the first ground that it is not just any misrepresentation that can make a person inadmissible to Canada, it has to be one that misrepresents “material facts” (that is, facts which are very important about the applicant and relevant to the decision to admit her or not). On the other hand, the misrepresentation can be either “direct” or “indirect”. An example of an “indirect” misrepresentation would be if someone else made the misrepresentation on behalf of the applicant in the application process or as part of the same process (for example, a family member applying along with the applicant as part of the same application to gain entry into Canada).
Applicant Said to Have Misrepresented Facts After Following Application Instructions
In the Kangah case, the applicant was a citizen of France. She had filed an application for a work permit while she was in Canada but had indicated that she was in France in the application. The reason she did so was that the instructions she was following (provided by the Canadian Embassy in Paris and on the IRCC website) had specifically stated “Even if the candidate is in Canada, he must complete an Application for Work Permit Made Outside of Canada [IMM 1295] and indicate as country of residence his country of usual residence, not Canada, in order to obtain the correct document checklist”.
The Immigration Division (the government arm which considered the application) deemed that there was a material misrepresentation in her application as a result. The applicant successfully appealed the decision, with the Court agreeing with her that it was unreasonable to find that a misrepresentation was “material” when Kangah had in fact followed the instructions provided by IRCC. The Court pointed out that “a misrepresentation is only material if it affects the process undertaken or the final decision” [of whether or not to grant the application] and since Kangah was following the requirements of the process, it would be unreasonable to hold that against her.
What Can Constitute a Misrepresentation?
The Kangah case was unusual in that it is not easy to get the courts to set aside a finding of misrepresentation in one’s work permit or permanent resident application. One suspects that the instructions provided by the IRCC will have been (or will be) adjusted following this decision to avoid future unreasonable decisions by the Immigration Division. Regardless, what this case illustrates above all else is how much of a minefield immigration-related applications can be where even someone following instructions provided by the government to the letter can run into legal problems which need to be sorted out.
The following is a summary of some circumstances that might constitute a misrepresentation (though this is not necessarily an exhaustive list):
- A misrepresentation can be made orally or in writing.
- A misrepresentation can also be made by omission – that is, failing to disclose information that is material to the application.
- A misrepresentation can be made “directly” (that is, by the applicant in their application) or “indirectly” (that is, by another person who was applying as part of the same application process, or by a person’s agent.
- A misrepresentation doesn’t have to be intentional in order for the applicant to be considered inadmissible to Canada.
- A misrepresentation can occur without the applicant’s knowledge and without any intent to mislead. The exception to this is when the applicant both honestly and reasonably believed they were not misrepresenting a material fact.
- Above all, the misrepresentation must be material. The misrepresentation will be considered “material” if it is important enough to affect the process.
Misrepresentation cases for immigration applications are almost always fact-specific and can be very complex as a result. Legal representation in such matters is always highly recommended. This is not just for the purposes of providing the strongest application possible to help avoid having any application rejected on the grounds of a material misrepresentation but also to safeguard your rights in the event of errors being made by those in the Immigration Division reviewing the applications.
The lawyers at Prudent Law in Mississauga are trusted advocates in Immigration Law, including permanent resident applications, temporary residency applications and citizenship and passport applications. We provide practical advice and passionate representation in a wide variety of immigration applications. If you are facing a legal dispute and you’d like to discuss it with one of our experienced litigation lawyers, please call us at 905-361-9789 or contact us online.