Immigration Appeal Division: overturned misrepresentation finding in a Spousal Sponsorship application

Misrepresentation is one of the most serious issues in Canadian immigration law. A single misstep, whether intentional or not, can result in a spousal sponsorship refusal, a five-year ban, and permanent complications for future immigration applications. This is why challenging an unfair misrepresentation finding is critical. As a Canada immigration lawyer, I have represented numerous clients in judicial reviews before the Federal Court of Canada and in spousal sponsorship appeals at the Immigration Appeal Division (IAD). One such case involved a couple who had their sponsorship application refused due to an alleged misrepresentation in the principal applicant’s South African Police Clearance Certificate (PCC). Their case highlights the importance of legal representation in misrepresentation cases, sponsorship appeals, and immigration litigation in Canada.

The Background: A Spousal Sponsorship Refused Due to Alleged Misrepresentation

My client, a Canadian citizen, had applied to sponsor her husband, a citizen of Zimbabwe, for permanent residence under Canada’s spousal sponsorship program. They had a genuine relationship, which was not disputed by the immigration officer. However, their application was refused on the basis that the applicant had allegedly submitted a fraudulent police clearance certificate from South Africa.

Like many sponsorship applicants, my client’s husband had lived in different countries and was required to provide police clearance certificates for each place he had resided in for more than six months. He followed all the steps required to obtain his South African PCC, visiting the South African Police Service (SAPS) in person to submit his application. However, after months of waiting without a response, the couple grew concerned about delays and eventually hired a third-party service to retrieve the certificate on their behalf.

The certificate they received appeared completely authentic, with all necessary security features, signatures, and stamps. But when the visa officer checked the SAPS online verification system, they found a discrepancy in dates - the certificate was stamped as issued on August 1, 2023, but the SAPS database recorded a finalization date of September 1, 2023. Based on this single inconsistency, the officer concluded that the document was fraudulent and refused the spousal sponsorship application on misrepresentation grounds effectively barring the Applicant from Canada for 5 years..

Despite the couple providing a new police clearance certificate and detailed explanations, the refusal stood. They had no choice but to file an appeal at the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada (IRB). That’s when they reached out to me, knowing that they needed an experienced immigration lawyer for their spousal sponsorship appeal.

Building the Case for the Immigration Appeal Division

In preparing for the IAD hearing, I developed two key arguments:

1. The Misrepresentation Finding Was Legally Incorrect

A misrepresentation finding must be based on clear and convincing evidence, not mere speculation or an inconsistency that has other possible explanations. Canada’s immigration case law has repeatedly established that officers must go beyond surface-level concerns before concluding that a document is fraudulent.

In Xu v. Canada the Federal Court ruled that a mere discrepancy is not enough to justify a misrepresentation finding unless the officer takes reasonable steps to verify the issue. Similarly, in Vargas Villanueva v. Canada the court reaffirmed that an officer must have more than suspicion to conclude misrepresentation occurred:

The letter itself does not exhibit any obvious sign of fabrication. We do not know what verifications the bank employee performed. It could well be that the employee merely inferred this conclusion from the fact that the account number was invalid; in other words, if the information on the letter is incorrect, the letter must have been forged. There are, however, other potential explanations. The bank may have made a mistake in issuing the letter. The employee who checked the authenticity of the letter may have misinterpreted the information it contained, for example by overlooking the fact that it was written two years earlier and might no longer be up to date. As the email communications between the Visa Officer and the bank employee have not been kept in the Record, we simply do not know.

[Vargas Villanueva v. Canada (Citizenship and Immigration), 2023 FC 66 (CanLII) at para. 20]

In this case, the officer never contacted SAPS to inquire whether internal processing delays could explain the date mismatch.

I also relied on Kong v. Canada which warned against placing blind trust in online verification systems. The court held that such databases are not always accurate, and officers must conduct further checks before making a negative determination:

…the Officer relied on a self-service verification from an on-line system rather than on information from a bank officer that could have alleviated the confusion about the bank stamp or code. The additional documents and explanations provided by the Applicant in her response to the procedural fairness letter, although rather convoluted, required more careful consideration by the Officer. The explanations were not sufficiently analyzed, or at least no such analysis can be discerned from the very cryptic GCMS notes. Nor did the Officer attempt to contact the bank to confirm the information submitted or, alternatively, to validate his concerns which were based on the on-line information. 

…I can only conclude that the Officer failed to consider the other supporting documents and the explanations provided in response to the procedural fairness letter. The decision cannot be found to be justified or intelligible.

[Kong v. Canada (Citizenship and Immigration), 2017 FC 1183 (CanLII), at paras. 39-40]

In my submissions, I argued that the visa officer had failed to meet this legal standard. The applicant had followed the proper procedure for obtaining his PCC, had waited months, and had only used a third-party retrieval service when his options were exhausted. The officer failed to consider alternative explanations for the date discrepancy and improperly concluded that the document was fraudulent.

2. Humanitarian and Compassionate Considerations Favored Allowing the Appeal

Even if the IAD found that a misrepresentation had technically occurred, the tribunal still had the power to grant special relief on Humanitarian and Compassionate (H&C) grounds.

I argued that the sponsor had deep ties to Canada - she had been a Canadian citizen since 2007, was financially established, and was the primary caregiver for her young daughter and two nieces. Her eight-year-old niece had a serious medical condition, and her continued presence in Canada was essential to the child’s well-being. In Baker v. Canada the Supreme Court of Canada held that the best interests of a child must be a primary consideration in any immigration decision.

Furthermore, the couple had a genuine relationship, and forcing them to remain separated for another five years before reapplying would impose severe hardship. The sponsor was also at a stage in life where delaying their ability to reunite could impact their ability to start a family together.

The IAD’s Decision: A Complete Victory

The hearing lasted for over 6 hours, but when the IAD decision was issued, it was clear that our efforts were worth it. The tribunal member agreed with us on both key points.

The misrepresentation finding was legally invalid. The visa officer had failed to conduct proper verification before concluding the PCC was fraudulent. The tribunal cited Xu, Vargas Villanueva, and Kong, agreeing that reliance on an online verification system was not enough to justify a misrepresentation finding:

[11] I agree with counsel for the Appellant that the visa officer did not have clear and convincing evidence to make a finding of misrepresentation as per the case of Xu. Additionally, as found in the case of Villanueva the officer would need more than a mere suspicion to come to that conclusion. The officer may have found a mismatch of dates but did not point to any clear signs of fabrication or turn their minds to other potential explanations. Additionally, it has not been made clear to me that the finalization date provided online is the same as an issuance date.

[15] …The difference of dates between the physical PCC and the online finalization date may have led to further queries but did not constitute clear and convincing evidence that a misrepresentation had been committed. As a result, I conclude the finding of misrepresentation is not legally valid.

Even if misrepresentation had occurred, H&C relief was warranted. The tribunal recognized that the sponsor’s family ties, financial stability, and caregiving responsibilities were strong factors in favor of the appeal. The best interests of her niece were also a decisive consideration:

[28] In the alternative, I find there are sufficient factors in this appeal that weigh in support of discretionary relief and overcome the misrepresentation. The Appellant’s establishment, some hardship, reasons for the sponsorship as well as the best interests of the children weigh in favour of this appeal. The appeal is allowed.

As a result, the IAD set aside the misrepresentation finding and ordered that the spousal sponsorship application be processed to completion. This was a complete victory, ensuring that my client and her husband could finally reunite in Canada.