Misrepresentation in Canadian Immigration Law
This page provides more detailed legal information and court cases on misrepresentations in Canadian immigration law. We previously explained in general terms what a misrepresentation is in Canadian immigration law.
To truly understand the effects of misrepresentation in Canadian immigration law, we must understand the relevant sections of the IRPA and the case law at the Federal Court of Canada.
This page was written by immigration lawyers to provide legal information.
Table of contents
Overview of misrepresentations in law
The Immigration and Refugee Protection Act (called the “IRPA”) provides for immigration legislation, including inadmissibility and misrepresentation.
Immigration, Refugees and Citizenship Canada administers the IRPA and makes decisions on immigration applications.
The Federal Court of Canada has the jurisdiction to hear applications for judicial reviews of immigration decisions, including those related to misrepresentation.
A judicial review is a process through which the Federal Court can review the decision-making process of an immigration officer and determine whether the officer followed the correct legal procedures and applied the relevant laws and policies correctly.
If an individual believes that they have been the victim of a misrepresentation finding and that IRCC has made a mistake, they may be able to apply for a judicial review of the decision in the Federal Court. The Federal Court will then review the decision to determine if it was reasonable, based on the evidence and the applicable laws and policies.
Through this process, the Federal Court creates precedents and legal rules. By doing so, they create legal precedents that immigration officers apply in making their decision. This is called jurisprudence or case law. See this page on judicial reviews of misrepresentations.
These decisions are public and IRCC must follow the decisions. By studying the reasons and decisions of the Federal Court, we can further understand what is a misrepresentation. They interpret section 40 of the IRPA and apply facts.
Inadmissibility under the IRPA
Before discussing misrepresentation, we need to understand that an individual may be found to be inadmissible to Canada for various reasons. Inadmissibility refers to the inability of an individual to enter Canada or to obtain a visa to enter the country. A misrepresentation is one of much inadmissibility under the IRPA.
There are several grounds on which an individual may be found inadmissible to Canada, including:
Security: If an individual poses a risk to the security of Canada, they may be found inadmissible. This can include individuals who have been involved in terrorism, espionage, or organized crime.
Human or international rights violations: If an individual has been involved in human rights violations or has committed an act outside of Canada that would be a crime if committed in Canada, they may be found inadmissible.
Serious criminality: If an individual has been convicted of a serious crime, or if they have a criminal record and are likely to commit a crime in Canada, they may be found inadmissible.
Health: If an individual has a health condition that poses a risk to public health or safety, or that would cause excessive demand on Canada's health care system, they may be found inadmissible.
Financial: If an individual is unable to support themselves and their dependents, or if they are likely to become a burden on Canada's social services, they may be found inadmissible.
Misrepresentation: If an individual is found to have provided false or misleading information on an immigration application, or if they have withheld important information, they may be found inadmissible.
If an individual is found inadmissible to Canada, they may be barred from entering the country or may be denied a visa to enter the country. In some cases, an individual may be able to pursue a judicial review. This involves demonstrating that IRCC made a mistake in deciding the application and finding that a misrepresentation occurred.
Section 16 of the IRPA
You have an obligation to truthfully answer all questions and provide supporting documents:
16(1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonable requires.
Your application could be rejected if you fail to truthfully answer all questions under section 16. This does not lead to a ban on its own. However, a finding of misrepresentation under section 40 usually accompanies a section 16 finding. The misrepresentation finding leads to a five-year ban (see my example below).
Section 40(1)(a) of the IRPA
Under section 40 of the IRPA, an individual can be found to have committed misrepresentation if they:
Provided false or misleading information on an immigration application, or
Withheld important information on an immigration application.
If an individual is found to have committed misrepresentation, they may be barred from entering Canada for a period of up to five years. In addition, if the individual is already in Canada, they may be removed from the country.
Here is the full text of section 40 of the IRPA:
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;
Case law at the Federal Court
As noted above, the Federal Court interprets the law and reviews decisions my immigration officers. They provide reasons for their decisions. This creates precedents and helps us understand what a misrepresentation is.
Below, key excerpts of Federal Court cases on misrepresentation have been reproduced. The bold font has been added to highlight important information.
Bondine v Canada (Citizenship and Immigration), 2008 FC 848 at paragraph 44:
[44] […] The purpose of section 40(1)(a) of the Act is to ensure that applicants provide complete, honest and truthful information in every manner when applying for entry into Canada (see De Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 (F.C.T.D.), Khan v. Canada (Minister of Citizenship and Immigration), 2008 FC 512 (F.C.T.D.), Wang v. Canada (Minister of Citizenship and Immigration), 2005 FC 1059 (F.C.T.D.), aff’d on other grounds, 2006 FCA 345 (F.C.A.)). In some situations, even silence can be a misrepresentation (see Mohammed v. Canada (Minister of Citizenship and Immigration), 1997 CanLII 16384 (FC), [1997] 3 F.C. 299) and the present facts went well beyond mere silence.
Wang v Canada (MCI), 2018 FC 368 at paragraphs 15 to 19:
[15] I have previously summarized the general principles concerning misrepresentation in Goburdhun v Canada (Citizenship and Immigration), 2013 FC 971 at para 28. For the purposes of this application they include that s 40 is to be given a broad interpretation in order to promote its underlying purpose (Khan v Canada (Citizenship and Immigration), 2008 FC 512 at para 25 (“Khan”)), its objective being to deter misrepresentation and maintain the integrity of the immigration process. To accomplish this, the onus is placed on the applicant to ensure the completeness and accuracy of their application (Oloumi v Canada (Citizenship and Immigration), 2012 FC 428 at para 23 (“Oloumi”); Jiang at para 35; Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at paras 55-56 (“Wang”)).
[16] In this regard an applicant has a duty of candour to provide complete, honest and truthful information in every manner when applying for entry into Canada (Bodine v Canada (Citizenship and Immigration), 2008 FC 848 at paras 41-42 (“Bodine”); Baro v Canada (Citizenship and Immigration), 2007 FC 1299 at para 15 (“Baro”); Haque v Canada (Citizenship and Immigration), 2011 FC 315 at para 11 (“Haque”)). Section 40 is intentionally broadly worded and applied and encompasses even misrepresentations made by another party, including an immigration consultant, without the knowledge of the applicant (Jiang at para 35; Wang at paras 55-56).
[17] The exception to s 40 is narrow and applies only to truly extraordinary circumstances 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 (Masoud v Canada (Citizenship and Immigration), 2012 FC 422 at paras 33-37 (“Masoud”); Goudarzi v Canada (Citizenship and Immigration), 2012 FC 425 at para 40 (“Goudarzi”)). That is, the applicant was subjectively unaware that he or she was withholding information (Medel v Canada (Minister of Employment and Immigration), [1990] 2 FC 345 (FCA) (“Medel”); Canada (Citizenship and Immigration) v Singh Sidhu, 2018 FC 306 at para 55 (“Singh Sidhu”)).
[18] In determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose (Oloumi at para 22). It is necessary, in each case, to look at the surrounding circumstances to decide whether the withholding of information constitutes a misrepresentation (Baro at para 17; Bodine at paras 41-42; Singh Sidhu at paras 59-61). Further, a misrepresentation need not be decisive or determinative. It is material if it is important enough to affect the process (Oloumi at para 25).
[19] Nor can an applicant take advantage of the fact that the misrepresentation is caught by the immigration authorities before the final assessment of the application. The materiality analysis is not limited to a particular point in time in the processing of the application (Haque at paras 12, 17; Khan at paras 25, 27, 29; Shahin v Canada (Citizenship and Immigration), 2012 FC 423 at para 29 (“Shahin”)).
Kazzi v Canada (MCI), 2017 FC 153 at paras 38 to 41:
[38] Turning now to the case law, the general principles arising out of this Court’s jurisprudence on paragraph 40(1)(a) of the IRPA have been well summarized by Madame Justice Tremblay-Lamer in Sayedi at paras 23-27, by Madame Justice Strickland in Goburdhun v Canada (Citizenship and Immigration), 2013 FC 971 [Goburdhun] at para 28 and by Mr. Justice Gleeson in Brar at paras 11-12. The key elements flowing from those decisions and that are of particular relevance in the context of this application can be synthetized as follows: (1) the provision should receive a broad interpretation in order to promote its underlying purpose; (2) its objective is to deter misrepresentation and maintain the integrity of the Canadian immigration process; (3) any exception to this general rule is narrow and applies only to truly extraordinary circumstances; (4) an applicant has the onus and a continuing duty of candour to provide complete, accurate, honest and truthful information when applying for entry into Canada; (5) regard must be had for the wording of the provision and its underlying purpose in determining whether a misrepresentation is material; (6) a misrepresentation is material if it is important enough to affect the immigration process; (7) a misrepresentation need not be decisive or determinative to be material; (8) an applicant may not take advantage of the fact that the misrepresentation is caught by the immigration authorities before the final assessment of the application; (9) the materiality analysis is not limited to a particular point in time in the processing of the application; and (10) the assessment of whether a misrepresentation could induce an error in the administration of the IRPA is to be made at the time the false statement was made.
[39] I emphasize that it does not matter that the authorities may have the ability to catch the misrepresentation or not. What matters is whether the misrepresentation induced or could have induced an error in the administration of the IRPA. As stated many times in the jurisprudence, an applicant may not take advantage of the fact that the misrepresentation is caught by the immigration authorities before the final assessment of the application (Goburdhun at para 28; Sayedi at para 27; Khan v Canada (Minister of Citizenship and Immigration), 2008 FC 512 [Khan] at paras 25 and 27). In other words, paragraph 40(1)(a) of the IRPA cannot be interpreted so as to reward those who managed not to get caught until the assessment of their application and to give an absolution for a false statement because it ultimately did not work.
[40] I point out that no case law supports the proposition that a false statement cannot be a misrepresentation leading to inadmissibility under paragraph 40(1)(a) if the person is unsuccessful in his applications under the IRPA. Counsel for Mr. Kazzi could not refer the Court to any.
[41] When measured in light of both the text of the provision and the principles established by the jurisprudence, there can be no doubt that the ID’s interpretation is entirely consistent with the explicit wording of paragraph 40(1)(a), the teachings of the case law and the objectives of the IRPA. In fact, throughout the Decision, the ID referred to the specific wording of paragraph 40(1)(a) and was guided by the principles established by this Court on the interpretation and application of this provision. I therefore have no hesitation to conclude that the ID’s interpretation falls well within the realm of rational and reasonable outcomes.
How to conduct research of Federal Court cases?
You can research Federal Court cases on their own website or on Canlii.org. You can use the neutral citations provided in the case law above (i.e. 2022 FC 1023) to search for cases or search key terms like “misrepresentation”. There are paid programs as well to help with legal research.
How can an immigration lawyer help?
The author of this blog, Cedric Marin, is an immigration lawyer. Previously, he was a judicial law clerk at the Federal Court of Canada, where he provided legal advice to judges on judicial reviews and misrepresentations. At Holthe Immigration Law, he has successfully represented clients in court on misrepresentations and overturned misrepresentations with settlements.