A great deal of our practice deals with allegations by CIC of misrepresentation committed by those that seek to enter, remain or bring others to Canada.
As with most things in life, prevention is the best cure. Despite what anyone tells you, do not:
- list someone else's child as yours simply to bring them to Canada;
- lie about the ages of children so that they meet the definition of a dependent child;
- provide false employment letters or other documents to establish you meet the requirements when you don't;
- commit marriage fraud (collusion or otherwise);
- exaggerate your time in Canada to meet the residency requirements for Permanent Residents or Citizenship;
- fail to mention children, spouses, common-law partners;
- fail to mention residency in other countries;
Bear in mind, that this is not an exhaustive list.
Even if you succeed in coming to Canada despite leaving something important out, or outright deception, you will find yourself in the unenviable situation of waiting for the other shoe to drop for years waiting, hoping against hope, that CIC will not discover your half-truth, un-truth, omission or outright falsehood. Finally, Justice Strickland's comments in Goburdhun v. MCI 2013 FC 971 are of assistance:
[43] I also cannot accept [the Applicant's argument] that, because CIC has access to the whole of his immigration history, an incorrect answer in his application is not material. His submission was that the incorrect answer did not affect the process because it was caught by CIC before a decision was rendered. This reasoning is contrary to the object, intent and provisions of the IRPA which require applicants ... to answer all questions truthfully...Accordingly, applicants who take the risk of making a misrepresentation in their application in the hope that they will not be caught but, if they are, that they can escape penalty on the premise of materiality, do so at their peril.
Misrepresentation is broadly worded in the Immigration and Refugee Protection Act (IRPA) and is broadly interpreted by CIC.
For no falsehood can endure
Touch of celestial temper.John Milton, Paradise Lost (1667; 1674), Book IV, line 811.
According to s. 40(1)(a) of the lRPA:
"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".
The objective of this section is to deter and to maintain the integrity of Canada's immigration system and hence it is to be given a broad interpretation (Sayedi 2012 FC 420) and even a "risk of an error" for the administration of the IRPA is sufficient for its invocation (Kobrosli 2012 FC 757).
"A good liar must have a good memory: Henry Kissinger is a stupendous liar with a remarkable memory." - Christopher Hitchens
Under this provision, in order for an applicant to be inadmissible for misrepresentation on account of an omission, the omission must be "material" in that it could have resulted in an error in the administration of the IRPA. In Ali v. Canada (MCl) [2008] F.C.J. No. 212, the Federal Court endorsed the guidelines regarding misrepresentation in ENF 2.
ENF 2 sets out a number of principles for immigration officers to follow in assessing whether or not an applicant should be found inadmissible for misrepresentation. These principles include:
- "It must be recognized that honest errors and misunderstandings sometimes occur in completing application forms and responding to questions. While in many cases it may be argued that a misrepresentation has technically been made, reasonableness and fairness are to be applied in assessing these situations.
- Material facts are not restricted to facts directly leading to inadmissible grounds. There are varying degrees of materiality. Fairness should be applied in assessing each situation.
- Misrepresentations are sometimes made to conceal sensitive personal information to avoid embarrassment. Where the fact is of limited relevance or materiality, it should not affect the outcome of the application."
(CIC Operational Manual ENF 2, section 9.3). [emphasis mine]
Section 9.4 of ENF 2 further states that:
"With respect to relevancy and materiality, the following principles apply:
- What is relevant is a broader concept than what is material.
- All material factors will be relevant. However, what is relevant may not always prove to be material:
1) information requested from applicants will be considered relevant, otherwise this information would not be requested; but
2) this relevant information will not always affect the process undertaken by an officer or the final decision. Only when it affects the process undertaken, or the final decision, does it become material. At this point, misrepresentation of the information means section A40 would apply, regardless of the decision outcome."
(CIC Operational Manual ENF 2, section 9.4).
According to s. 9.10 of ENF 2, when a person "answers truthfully at an interview and without hesitation" and it is reasonable to believe that the omission was the result of an innocent error, a finding of misrepresentation should not be made.
There is jurisprudence to suggest that there may be an element of mens rea for misrepresentation to be made out. In Osisanwo v. MCI, 2011 FC 1126, Justice Hughes was confronted with a peculiar, unique set of circumstances. A couple and their child had been sponsored for permanent residence by their son in Canada. After a DNA request, it was discovered that the accompanying child was not the son of his putative father. It turned out that the while the principal applicant and her husband were married for decades years the couple separated briefly years prior during which time the the child's mother had an affair which resulted in the birth of her child. The birth certificate indicated the name of her husband. She did not know that her husband was not the father. CIC proceeded with a determination of misrepresentation. Justice Hughes noted that in Mendel [1990] 2 FC 345 an applicant's sponsorship had been revoked but she entered Canada anyway. The Court in that case held that the Applicant "reasonably believed that at the border she was withholding nothing relevant to her admission..."
Justice Hughes went on to eloquently state:
[14] In the present case, the Applicant Modupe is clearly the mother of the child. A birth certificate attests to the father being Cladius. The uncontradicted evidence is that Cladius accepted the child and, with Modupe, raised the child as his own. He had no reason to believe otherwise. History is replete with children born to and raised by a married couple, believing it to be their own. Must an applicant seeking entry into Canada disclose every extra-marital relationship conducted at a time where there is any possibility that a child might have been fathered by someone other than the husband? Surely our society has not found itself at that point.
[15] Here, the husband and wife believed the child to be theirs; a birth certificate attests to that fact. There was no reasonable basis for concluding that there was any mens rea to mislead.
There are serious consequences to an allegation or finding of misrepresentation. If you are confronted with a fairness letter or an interview concerning your application it is important to retain and take the advise of an experienced immigration lawyer. CIC may be persuaded not to proceed despite evidence of even deliberate misrepresentation as an officer retains this discretionary authority. If enforcement action has resulted in a s.44 report against a Permanent Resident, that report can be challenged at the Immigration Division and a Permanent Resident retains an appeal to the Immigration Appeal Division which has equitable jurisdiction and can grant relief on humanitarian and compassionate grounds.
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