Lesson is – never give up on a file, even if the law is against you. You might have good facts. Or if you get bad facts, maybe there is some good law. There is a human level of officer discretion that can override laws, policy, and external constraints.
Immigration and Refugee Protection Act (“IRPA”) Division 4, Inadmissibility lists the legislation (law) that Immigration, Refugee and Citizenship Canada (“IRCC”) officers use to deny/refuse the application in processing and one of them is called “Misrepresentation”.
This term may come up with a Procedural Fairness Letter (“PFL”) from IRCC:
…
It will seem daunting to receive a letter like this because the consequences of a finding of inadmissibility based on misrepresentation is a ban from Canada for a period of five years and ineligibility to apply for PR for the same period. Per the legislation, s.40 of IRPA states:
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.
Our Client’s Experience
Our client received this letter, realized the need for authorized representation and immediately began searching, which led them to us, “Team Will” as he affectionately called us.
After speaking honestly and candidly with the client during initial consultation, we began to identify the key issues that we needed to address. We immediately filed for an Access to Information and Privacy (“ATIP”) request, in hopes to find additional information to pinpoint IRCC’s concerns. As new counsel, we also required additional time to review all documents submitted and requested an extension. IRCC graciously approved and we continued our uphill battle.
We began to discuss a plan, beginning with a search of case law, to see if we had any law on our side. And as we suspected the law was not on our side.
[21] Mr. Li responded to the procedural fairness letter with nothing more than a bald assertion that he had misunderstood the question. However, as the visa officer noted, “the application form clearly asks for arrests, charges, or convictions”. Given the clear language of the application form, and Mr. Li’s failure to provide a reasonable explanation for his mistake, I am not persuaded that the visa officer was obliged to consider the Medel exception or explain why it did not apply in this case.
Li v. Canada (Immigration, Refugees and Citizenship), 2018 FC 87 (CanLII), <https://canlii.ca/t/hq3l8>, retrieved on 2021-12-13
[31] The Applicant admits to the misrepresentation in her temporary residence application, but argues that this was an error of her travel agent. Again, that does not bar the application of paragraph 40(1)(a) of the Act. The Applicant signed her temporary residence application and consequently must be held personally accountable for the information provided in that application. It is as simple as that.
[32] The Applicant denies having withheld information in her permanent residence application, and rather attributes her omission to mention her legal training and certification and her association with Everwin as facts that simply slipped from her mind. The Senior Officer did not find this explanation credible and this finding is clearly reasonable in the circumstances…
[34] Finally, the Applicant argues that the misrepresentation or withholding was subsequently cured when she provided the information after she received the fairness letter. I disagree. When the Minister uncovers the fact that a misrepresentation has been made or that information has been withheld, a simple subsequent correction of the record or the communication of the information in question will not normally act as a bar to the application of paragraph 40(1)(a): Khan v. Canada (Minister of Citizenship and Immigration), supra at paragraph 25.
Cao v. Canada (Citizenship and Immigration), 2010 FC 450 (CanLII), <https://canlii.ca/t/29jm1>, retrieved on 2021-12-13
[39] The applicant contended that the misrepresentation must be material. That may leave the impression that the test for inadmissibility is relatively high. It is not as accurate as it should be. The IRPA speaks rather of withholding material facts that relate to a relevant matter that could induce an error in the administration of IRPA …
[40] A mere reading of paragraph 40(1)(a) of IRPA makes it clear that there must be a misrepresentation by an applicant. It is also clear that it is not “materiality of misrepresentations” writ large that must be considered, but rather that what is prohibited is misrepresenting facts that are material with respect to a relevant matter in that an error in the administration of the Act could be induced, not that they have induced such an error (Koo v Canada (Citizenship and Immigration), 2008 FC 931; [2009] 3 FCR 446, at para 20).
Mohseni v. Canada (Citizenship and Immigration), 2018 FC 795 (CanLII), <https://canlii.ca/t/ht7mq>, retrieved on 2021-12-13
After knowing the law was not necessarily on our side, we were still not ready to give up and decided to continue forming a strategy.
We began by writing a lengthy, detailed affidavit to address the circumstances of our client that had led to the misrepresentation. Our team spent countless hours perfecting all documents, preparing our client for “Expecting the worst, but hoping for the best” and finally submitting a response to the PFL. We recognized the political gravity of the situation he was in, the human reasons he made previous misrepresentations, and told our client’s story in a compelling way.
We were thrilled when we received the client’s email stating the breaking news of not only no misrepresentation ban, but an APPROVAL for his permit.
We could feel his excitement jump from the written words. We are over-the-moon in achieving this result for our client and equally ecstatic to know that we had helped make the client’s Canadian Dream come true.
We cannot wait to meet them when they arrive in Canada!
Contact info@heronlaw.ca to get us in your corner.
