Section 40 (1)(a) of the Immigration and Refugee Protection Act:

“Section 40 – Misrepresentation – 

(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;

Some of the examples of misrepresentation would be:

1. Failure to declare that one has been refused a visa for another country,
2. Providing a document that is found to be non-genuine,
3. Failure to mention a family member, bank details
4. Declaring employment experience which one does not have, or,
5. Obtaining permanent residence by having engaged in a non-genuine marriage, and so on.

Misrepresentation can occur either by the Applicant, the sponsor, family member, or your agent/ representative who applied for the PR/Visa. In all cases, it is deemed that the principal applicant is at fault and a ban is imposed on all the Applicants.

Effects of Misrepresentation

Misrepresentation is a form of fraud in Canada and can have serious consequences. The Immigration, Refugees and Citizenship Canada (IRCC), on finding the occurrence of a misrepresentation, can not only reject the application, but can also forbid the Applicant from entering Canada for at least five years and further note the Applicant’s name in the permanent record of fraud with Canadian Authorities, remove the status of a permanent resident or Canadian citizen, charge the Applicant with crime and remove the Applicant from Canada.

Section 40 (2) (a) states “the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced;”

The implications of being served a ban for period of 5 years from Canada can have irreparable damage on the Applicant’s image. Such a ban also has a far reaching impact on any other country that the Applicant may want to apply for a visa/ PR. Such an application would require one to disclose this ban, which, in turn, could have a negative impact in such application.

A Typical Notice from the Canadian Immigration Department reads:-

“You have been found inadmissible to Canada in accordance with paragraph 40(1)(a) of the Immigration and Refugee Protection Act (IRPA) 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 the IRPA. In accordance with paragraph A40(2)(a), you will remain inadmissible to Canada for a period of five years from the date of this letter or from the date a previous  removal order was enforced”

In Rajesh Chawla v. Minister of Citizenship and Immigration,[1] Rajesh Chawla (the principal Applicant), a citizen of India, applied in March 2010 to come to Canada as a skilled worker and asserted that he had worked since 2003 as a cook at a restaurant in Mumbai. A phone call was placed to the restaurant using the phone number provided by the Applicants’ consultant. A man named Mr. Naresh, who claimed to have been working in the restaurant for nine years, answered the phone and informed the Officer that no one by the name of Rajesh Chawla had ever worked there. According to the Respondent, Mr. Naresh also explained that the restaurant had changed location about three years ago, that the name of the proprietor was Rajesh Mehra and that he was not there but would come in the evening, that there were four other cooks working there but no one by the name of Rajesh Chawla, and that the eatery offered only vegetarian food.

The Applicant was then put on notice of the adverse information and was provided with the opportunity to respond to the “fairness letter” served on him.

Thus, precise and intelligible reasons must be given to the applicant in order for the rejection to be valid. If the applicant is unsatisfied and still feels that the reasons given are inadequate, he/she can move the Federal Court on an application for judicial review under subsection 72 (1) of the Immigration and Refugee Protection Act.

Defences available to an applicant

In case of a rejection of an application for misrepresentation, the following defences will be available to the applicant:

• Bona fide mistake: If the misrepresentation made is a bona fide error that can be promptly corrected, and where such contradiction does not add to the overall confusion in the application, the error may be excused.

• Misrepresentation should be material: For an inadmissibility of an application under Section 40 of the Immigration and Refugee Protection Act, there must not only be a misrepresentation, but the misrepresentation should also be material. Thus, it should be of such a nature that it can induce an error in the administration of the Act. Only then will a claim for misrepresentation be valid.
• Proper reasons to be given: In case full information is not given to the applicant as to why their application was rejected, or where there is any other breach of procedural fairness, such decision will be flawed and cannot stand in a court of law. In Canada (Minister of Citizenship and Immigration) v. Jeizan[2], it was declared that: “Reasons for decisions are adequate when they are clear, precise and intelligible and when they state why the decision was reached. Adequate reasons show a grasp of the issues raised by the evidence, allow the individual to understand why the decision was made and allow the reviewing court to assess the validity of the decision.”

In conclusion, the applicant must be very careful in order to avoid making errors in the application process. Filling up the application itself is an arduous process, and a very simple mistake might even result in the rejection of the application itself. Hence, it is always advised to take help from a lawyer who is well versed with the application process in order to avoid and combat the technical and procedural difficulties that may follow.

-Shashank Kumar & Jayashree Pradhan

[1] 2014 FC 434

[2] 2010 FC 323