In this blog post, we will discuss two recent cases (one 2022 Federal Court Decision and one 2023 Immigration Division) that helps outline steps Applicants should take to be able to preserve the argument of innocent misrepresentation.
The innocent misrepresentation (also called the innocent mistake) exception is a narrow exemption – it applies only” where an applicant honestly and reasonably believed that they were not misrepresenting a material fact and knowledge of the misrepresentation was beyond the applicant’s control” (Goburdhun v Canada (Citizenship and Immigration), 2013 FC 971 at para 28) – as cited in Moon v Canada (Citizenship and Immigration), 2019 FC 1575 [Moon] at para 34.
Whether it is beyond an applicant’s control was the determinative issue in the current leading case of Pandher v. Canada (MCI) 2022 FC 687 argued by my friend/mentor, Raj Sharma.
While it is important to frame this case first and foremost as being one about whether the innocent misrepresentation exception should have been considered, rather than whether the exception was met. However, there are some key takeaway paragraphs that are important for context:
Justice Strickland writes at paragraph 42 in Pandher:
[42]… I am not persuaded that when there are submissions before a visa officer asserting that the applicant reviewed the application for accuracy before signing it, provided valid original documentation to the representative to be submitted with the application and that the applicant was not aware of and could not have known of an alleged inclusion of a fraudulent document – that is, knowledge of the misrepresentation was beyond the applicant’s control – that the visa officer is not required to assess that evidence to determine if it would support the application of innocent misrepresentation exception (see Moon). (emphasis added.)
Justice Strickland then extracts a few principles that are relevant to the issue of control:
[45] Of course, it is important to note that to engage a consideration of whether the exception had application in a circumstance where an applicant alleges that the misrepresentation is attributable to the act of their immigration consultant, an applicant would have to demonstrate to the satisfaction of the visa officer that they were diligent in reviewing their application (including all supporting documents), that it was complete, true, accurate and final when they signed it, that any alleged subsequent changes were made without their knowledge and, knowledge of the changes was beyond their control.
This case is in contrast to the recent finding of Member Granton in the recent Immigration Division decision in Zhang v Canada (Public Safety and Emergency Preparedness), 2023 CanLII 19689 (CA IRB), <https://canlii.ca/t/jw5xf> [Zhang]. In Zhang, Mr. Zhang through his former counsel submitted a fraudulent letter of acceptance to York University in a study permit extension restoration application.
The great thing about an Immigration Division hearing, is in cases like this where testimony is involved, it gives us greater insight into what occurred and underlined an independent third-party tribunal’s decision. With a pure immigration decision, you often do not get much by way of notes to allow for the piecing together of a decision-maker’s justification. Indeed many decisions, like Pandher highlighted above, get refused because decision-makers do not even engage in the innocent misrepresentation argument/defence raised.
In Zhang, the person concerned filed both an affidavit and testified at his Immigration Division hearing. He testified that he had used a consultant named Mr. Sun, but hired Ms. Bing. However, there was some discrepancy in his affidavit and his testimony relating who submitted the application (whether it was a Mr. Wu). The person concerned was also unable to retrieve his previous application materials. He previously had his phone stolen and was unable to pull up old correspondence with his former counsel.
Member Granton took issue with the supporting evidence, writing:
[35] Pandher does however reiterate that the ‘innocent mistake exception’ ought not to apply in circumstances where the applicant’s allegations regarding the behaviour of the agent are not credible or supported by the evidence.[29]
In several paragraphs, the Member took issue with the Applicant’s contradicting accounts at the port of entry, whether or not he received a redacted or unredacted copy of the decision letter for his visa application, and his overall credibility.
The text messages that Zhang was able to retrieve on his phone were non-contentious but other communication was not recoverable. Zhang was ultimately not credible and no weight was assigned to his testimony regarding his honest belief that he was not misrepresenting.
Member Granton also found that the Applicant’s belief was not objectively reasonable writing:
It would not be objectively reasonable for an individual to have a letter of acceptance for a program beginning in May 2017 as early as July 2016. It is not objectively reasonable that only some text messages between Mr. Zhang and his former counsel were recoverable, but not the others that are most important to the assessment of misrepresentation. Accordingly, I do not find his subjective belief to be objectively reasonable.
Finally, on the third part of the analysis – whether the misrepresentation was outside Zhang’s control, Member Granton found that the arrangement between Zhang and his former consultant – an implicit understanding that the application would be submitted without his review did not demonstrate diligence. Member Granton writes:
[61] Given that Mr. Zhang knew his consultant previously filed an application without his signature or review and given that Mr. Zhang willingly returned to the same consultant despite this, it is not reasonable that Mr. Zhang would have expected the opportunity to review or sign his application prior to submitting it this time. Mr. Zhang’s actions in this respect do not, in my view, demonstrate sufficient diligence.
[62] There is sufficient evidence before me to infer that the understanding between him and his counsel was that the application would be submitted without his opportunity to review and sign it which in my view does not demonstrate sufficient diligence.
Zhang was ultimately found inadmissible and issued an exclusion order. So what does this mean for takeaways for applicants.
Let us discuss this now.
Tip 1: Always Ask for a Full Copy of Your File Before and After Submission
Anybody working with a third-party should ensure at very minimum they have a full copy of the file being submitted. Especially as ATIP requests for full application copies are often being delayed – sometimes even up to a year, it is crucial to maintain a copy of your own file. As technologically issues can happen, make sure to back up these up either on Cloud or some sort of external hard drive.
Also, as applications often undergo last minute changes, renumbering, resizing – always check in after submission to ensure you have the latest versions.
Tip 2: Always Ask for Original Correspondence from IRCC (Not Screenshot/WeChat Messages)
This one is often the source of a lot of problems – particularly where unauthorized practitioners are trying to hide their address or the true nature of concerns. They will pass on just a screenshot of the concerns, redact content, or in some cases even paste their own letters. Make sure to always ask for copies of original correspondence, emails, and proof of requests/submissions.
Tip 3: Keep a Copy of Correspondence (including text/chats) with your Representative + Request Affirmative Responses
As was the issue in Zhang, correspondence was lost due to passage of time and phone issues. Member Granton was concerned that the Applicant was untruthful in what was being provided by way of a limited selection of the correspondence that was presented. It is clear that both record keeping/record disclosure was an issue.
To demonstrate diligence – both internal and external means will be necessary. Internally, keeping a recording and refusing to send/receive legal instruction by text or WeChat is a good step. Ask for clear instructions and statements, in writing, and by email.
As an applicant, you should be asking for affirmative responses. Can you confirm that this is exactly what you sent IRCC? A response should be provided by your rep: Yes. Keep and document this response.
Conclusion: Good Record Keeping Crucial
We hope this piece and the three small tips we added can help you ensure diligence and control over your own immigration situation, in this increasingly uncontrollable environment. Innocent misrepresentation is ‘all about the record’ and hopefully you can improve your record-keeping in the event you need to pull out this defence to misrepresentation.
