Avoiding misrepresentation in your Canadian immigration application

One of the greatest mistakes that an immigration applicant can make is misrepresentation. The term, largely self-explanatory, refers to when an applicant sends false information or documents to Immigration Refugees and Citizenship Canada (IRCC) as part of their immigration application.

Among other considerations, two of the most important things to remember about misrepresentation is that:

• It can occur even if applicants make an innocent mistake (more on this later) on their application details or in sending relevant documents to IRCC; and
• It is considered a form of fraud, and therefore a serious crime which can be persecuted as such.

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How can misrepresentation occur on my immigration application?

Commonly, misrepresentation arises when people make mistakes on details of their application forms, or sending documents with incorrect, unauthorised, or forged details in support of their application. Withholding relevant information from IRCC in an immigration application can also be determined as misrepresentation.

Therefore, any mistakes, missing (relevant) information, or inaccuracies on any of the following documents could constitute misrepresentation to IRCC:

• Your application document (usually a form beginning with identification code “IMM”);
• Your passport(s) and other identification documents;
• Your visas or electronic travel authorisations (eTA);
• Your diplomas, degrees, education credential assessments (ECA), and proof of acceptance or graduation documents, or other papers used for the same purpose;
• Your proof of employment documents, like job offer letters, apprenticeship or trade papers or other documents used for the same purpose;
• Any relevant certificates of birth, marriage, final divorce, annulment, separation, or death;
• Police certificates and/or clearances; and
• Any other documents used in support of your permanent or temporary residence (including work, study, or visit visa) applications.

Additionally, any misrepresentation that occurred in receiving supporting documents (for example, lying about employment history to receive a job offer in Canada), may also be considered misrepresentation.

How can I avoid misrepresentation on my immigration application?

Perhaps the simplest way to avoid misrepresentation is to carefully check all details and documents that you are using to support your application. Anything that is submitted to IRCC as part of your application can leave you potentially liable, so double or even triple checking all information is advisable.

Due to the relative intricacy of immigration applications, and the often-large number and diverse kinds of documents and information needed, many applicants choose to hire an immigration lawyer—to better protect themselves and ensure their application has the best chance of being approved.

What are the possible consequences of being found guilty of misrepresentation?

As mentioned, misrepresentation is considered a type of fraud. As such, if you are found guilty of misrepresentation your immigration application will be refused.

Additionally, depending on the severity of misrepresentation, and the specifics of each case, possible consequences can include:

• Being forbidden from entering Canada for at least 5 years;
• Receiving a permanent record of fraud with IRCC;
• Removal of your status as a permanent resident or Canadian citizen;
• Any sponsors on your immigration application also being found guilty of misrepresentation;
• Being charged with a crime by IRCC; and/or
• Removal from Canada.

What can I do if I am at risk or found guilty of committing misrepresentation?

While misrepresentation can have serious consequences for applicants, there are potential preventions and remedies that applicants can explore.

Procedural Fairness Letter

Occasionally, before an officer makes a final decision on whether an applicant is guilty of misrepresentation, they will send the applicant a Procedural Fairness Letter (PFL). These are emails or electronically sent letters that immigration officers send to allow applicants to explain concerns that officers have about documents or details of the immigration application.

While this can be frustrating, it is also an opportunity to clear up any mistakes or miscommunications on the applicant’s part. Immigration applicants should write a clear and comprehensive letter in response, doing their best to clarify any inaccuracies, mistakes, or omissions in their application. Many applicants choose to hire an immigration lawyer at this stage, as they can help in drafting the best possible letter to avoid accusations of misrepresentation.

Judicial Review

If you have already been found guilty of misrepresentation—and believe the claim is unreasonable—you can also appeal this decision at the Federal Court, through a process known as Judicial Review. While applicants can represent themselves here, most opt to hire an immigration lawyer at this stage of the journey as well. Note that the Federal Court cannot replace an immigration decision with its own, nor can they reconsider the facts of the case. The court can only determine if the accusation of misrepresentation was reasonably warranted or not. If the claim was found to be unreasonable, the Federal Court can overturn it, and thereby make you eligible once more for Canadian immigration.

While consequences for misrepresentation can be severe, IRCC’s own policies—specifically section ENF02 s. 9.3 of IRCC’s Enforcement Manual—acknowledge that “It must be recognised that honest errors and misunderstandings sometimes occur in completing application forms and responding to questions….reasonableness and fairness are to be applied in assessing these situations”. Thus, one popular defence for applicants in the Judicial Review process is the “innocent mistake” defence. This is when an applicant accused of misrepresentation attempts to explain inaccuracies in their application as an innocent mistake. While this can sometimes be a successful appeal, it is not always successful. The “innocent mistake” defence puts the responsibility of reasonably proving any misrepresentation in your application was the product of an innocent mistake, on your (the applicant’s) part; applicants must further satisfactorily explain why this is the case to the Federal Court.

The Cohen immigration law firm has over 45 years of expertise in helping clients get their immigration applications approved, with more than 60 lawyers, paralegals, and other legal professionals who handle the complete preparation to permanent residence and temporary work permit applications.

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