| Ek machhar sala aadmi ko hijda bana deta hai | |
| Ek khatmal poori raat ko apahij kar deta hai |
It is vitally important to carefully review and accurately answer questions on any immigration application.
Many individuals have found themselves banned from Canada for a half decade for a simple oversight or inadvertence -for example, failing to advise of previous refusals or applications.
Applicants will be provided a procedural fairness opportunity, but in my experience, they again fail to provide a complete, fulsome, credible response. After a refusal, they then approach a Canadian lawyer for recourse to the Federal Court. Judicial review of such refusals are difficult given the available jurisprudence.
Intent is not required for such a finding; the one "defence" is exceedingly narrow; the misrepresentation or withholding/omission need only be "material"; just because the Officer or IRCC had the relevant (correct) information does not help.
A recent Federal Court case provides a good overview (2020 FC 872). Officers will be given a good deal of deference or margin with respect to their (sometimes disproportionate) decisions.
My thoughts?
- Prevention is the best medicine. Carefully review the application -do not rely on any agent or ghost consultant and even if a registered consultant or lawyer prepares the forms, it is imperative that you review same before signing/submission.
- If you do get a PFL -provide a very complete and credible response directly addressing the Officer's concerns. You may want -if you haven't at this stage -to retain competent and experienced counsel at this point.
- If a finding of misrepresentation is made you have 60 days to file an Application for Leave and Judicial Review.
Remember, you can't fault the Officer for not considering evidence or submissions that were not before him/her. It's clear that in the case cited above, the response to the PFL was thin:
...the Officer was not required to consider the innocent error exception, rather than having failed to consider it. Ms. Muniz responded to the procedural fairness letter that there was a misunderstanding about the question. She did not explain how she misunderstood the question, or what about it she misunderstood. It was open to the Officer to accept or to reject the one-line explanation provided...
The correct information may have been provided in previous applications. This does not obviate the requirement to provide complete, true and correct information in the instant application:
...In my view, however, there is no requirement for an Officer to cross-reference multiple applications, submitted at different points in time, to determine if a misrepresentation has occurred innocently in a subsequent application. ...
...
[17] Finally, Ms. Muniz also argues her omission was not material in any event because the Officer had access to this information through their own internal databases (hence the fairness letter), and therefore her omissions could not mislead the immigration system. I disagree. As explained in Mohseni, information on previous refusals is material to the issuance of a visa: Mohseni, above at para 41. Even if that information was accessible by the Officer, the omission need not be determinative, and this did not relieve Ms. Muniz of the obligation to fulfill her duty of candour: IRPA s 16(1). Applicants cannot rely on the immigration system to catch their errors, even if they are made innocently, to meet this requirement: Goburdhun, above at para 43.
Have you ever seen “Sorry! I forgot about my previous refused application” type of reply work in response to PFL?
Posted by: AnanditV | September 03, 2020 at 03:32 PM