{"id":10291,"date":"2024-10-30T10:00:14","date_gmt":"2024-10-30T14:00:14","guid":{"rendered":"https:\/\/cila.co\/?p=10291"},"modified":"2024-10-31T05:54:52","modified_gmt":"2024-10-31T09:54:52","slug":"practical-tips-for-a-new-applicant-to-canada-on-misrepresentation-issues","status":"publish","type":"post","link":"https:\/\/cila.co\/fr\/practical-tips-for-a-new-applicant-to-canada-on-misrepresentation-issues\/","title":{"rendered":"Practical Tips for a New Applicant to Canada on Misrepresentation Issues"},"content":{"rendered":"

Authored by Chaobo (Bo) Jiang, Barrister and Solicitor, Zaifman Immigration Lawyers, and Chair, Manitoba Bar Association Immigration Law Section.<\/em><\/p>\n

<\/p>\n

Executive Summary<\/u><\/strong><\/p>\n

Misrepresentation is a serious immigration offence in Canada. In order to proactively avoid any misrepresentation issues and\/or to address it effectively should the need arises, applicants may consider the following:<\/p>\n

<\/p>\n

Proactive Measures to Avoid Misrepresentation:<\/p>\n

    \n
  1. Take Ownership of the Application:\u00a0Applicants must personally review and understand all contents of their application, even when using an immigration representative.<\/li>\n
  2. Use a Licensed Representative: \u00a0Applicants should only engage only with lawyers or immigration consultants who are licensed and are in good-standing.<\/li>\n
  3. Document Everything:\u00a0Maintain thorough records of all communications and documents submitted to IRCC. This also applies to between an applicant and their immigration representative.<\/li>\n<\/ol>\n

    <\/p>\n

    Actions to Consider if Misrepresentation Allegation Arises:<\/p>\n

      \n
    1. Prompt Correction of Errors:\u00a0Address any mistakes immediately with IRCC when discovered. Early correction may mitigate the impact of misrepresentation.<\/li>\n
    2. Assess Representative’s Negligence:\u00a0If a licensed immigration representative’s error leads to a finding of misrepresentation, Applicants may seek recourse through the Federal Court.<\/li>\n
    3. Ensure Sufficient Information for Response:\u00a0Before responding to a procedural fairness letter from IRCC, Applicants should ensure that sufficient details and information is available to be able to fully address the IRCC\u2019s concerns. Do not assume to know the concerns of IRCC without adequate investigation. If necessary, it may be good practice to request additional information, obtain the GCMS notes, and request for a reasonable extension of time to respond.<\/li>\n<\/ol>\n

      <\/p>\n

      There have been many articles written about misrepresentation and its severe consequences, but I find that not many articles focus on what one should do if such a situation arises. What are some good practices for an applicant to keep in mind? I want to take some time to discuss three things that, in my opinion, may help an applicant proactively avoid getting into a bad situation, and also three things that an applicant can consider if on the receiving end of a procedural fairness letter related to misrepresentation. This is not intended to be an exhaustive or exclusive list but rather a starting point to learn, and I hope that everyone can take something away from reviewing this article.<\/p>\n

      What is misrepresentation? In my opinion I see it as providing incorrect, incomplete, and\/or misleading information to Immigration, Refugees and Citizenship Canada<\/em> (IRCC) to the extent that IRCC is unable to properly administer Canadian immigration law and conduct their work. If this sounds very broad, it’s because misrepresentation is intended to be interpreted very broadly. It could even cover information that an applicant does not know about but could have discovered through due diligence. There is an exemption for innocent misrepresentation, but it has been very narrowly applied by the Canadian Federal Court.<\/p>\n

      Three things in my opinion that an applicant can do to proactively protect themselves:<\/strong><\/p>\n

      <\/p>\n

        \n
      1. Taken ownership of the application.<\/u><\/li>\n<\/ol>\n

        <\/p>\n

        Immigration is a very personal matter. For an applicant looking to immigrate to Canada, not only will they be giving a lot of personal information to the government, but it may also determine the trajectory of their life and future. It cannot be understated how important it is for the applicant to take control and personal ownership of all the application contents.<\/p>\n

        Regardless of whether the applicant is completing an immigration application on their own or receiving help from another individual, it is important for the applicant to personally learn and understand the process and what they are submitting to the government. This applies even if you are using a representative. This can be as simple as asking to see and review the full application and supporting documents from the representative before it is all submitted to IRCC. In fact, most immigration representatives will proactively provide this information to their clients ahead of time to request a client\u2019s final review prior to submission.<\/p>\n

        The Federal Court has repeatedly held that an applicant is responsible for everything that is submitted in an application, even if there was a representative involved. For example, let’s look at the case of Kaur v. Canada (Citizenship and Immigration)[1]<\/strong><\/em><\/a>.<\/em> This is a well-known case wherein Ms. Kaur was defrauded by her ghost consultant who forged and submitted a fraudulent letter of admission to a Canadian post-secondary institution. It took years for the fraudulent letter to be discovered, and by then Ms. Kaur had made a life for herself in Canada. Ms. Kaur was found to have committed misrepresentation, and the Federal Court held that Ms. Kaur was ultimately responsible for her application. Mr. Chief Justice Crampton stated in his decision that:<\/p>\n

        \u201c[38]\u00a0It is\u00a0not\u00a0objectively reasonable for an applicant to fail to\u00a0review\u00a0their full application package to ensure its accuracy\u2026<\/p>\n

        [40]\u00a0It is settled law that applicants for immigration status in this country are fully responsible for\u00a0the\u00a0contents of their application\u2026<\/p>\n

        [42]\u00a0I recognize that it may\u00a0not\u00a0occur to some applicants for immigration status in this country that they should verify\u00a0the\u00a0accuracy and truthfulness of\u00a0the\u00a0information and documentation prepared by consultants they have retained on\u00a0the\u00a0basis of their apparently good reputation. I also acknowledge that making applicants fully responsible for their applications in such circumstances can have harsh consequences. However, in\u00a0the\u00a0absence of any practical way of holding foreign-based consultants accountable for such information, I do\u00a0not\u00a0see any alternative to assigning full responsibility to\u00a0the\u00a0applicants. I agree with\u00a0the\u00a0Panel Member that this is required to preserve\u00a0the\u00a0integrity of Canada\u2019s immigration system. Permitting applicants to avoid\u00a0the\u00a0consequences of fraudulent behaviour by their consultants would create unacceptable scope for weakening\u00a0the\u00a0integrity of that system.[2]<\/a>\u201d<\/p>\n

          \n
        1. Use a licensed representative<\/u><\/li>\n<\/ol>\n

          <\/p>\n

          I think another important thing for an applicant to realize is to not use an unlicensed consultant, commonly known as ghost consultants. If you are suspicious about the representative you are using, make sure that they are licensed to practice immigration law in Canada as a lawyer with their Provincial Law Society or as a licensed immigration consultant with the CICC.<\/p>\n

          Using a ghost consultant is not an acceptable practice under Canadian Immigration law and, in fact, can lead to IRCC considering whether the usage of an undisclosed consultant is misrepresentation. The Federal Court of Canada, in the case of Lyu v. Canada[3]<\/strong><\/em><\/a>, <\/em>states as follows:<\/p>\n

          \u201c[32]\u00a0\u00a0Ultimately, this judgment should in no way be taken to condone the use of ghost consultancies or consultants. To the contrary, the Court \u2013 as much as any immigration program in Canada, whether federal or provincial (or perhaps soon, municipal) \u2013 abhors the use of such practices, which are equally exploitative of Canada\u2019s judicial system, as they are of its immigration programs. But most of all, these unlicensed and undeclared entities and individuals end up harming their clients more than anyone. For these reasons, the sooner ways can be found to end the unauthorized practice of immigration in Canada including through ghost representation, the better. It will not only further access to justice, and the integrity of immigration programs, but equally importantly protect the public, who are often vulnerable immigrants or refugees.[4]<\/a>\u201d<\/p>\n

          The point here, while it is perfectly okay to have someone else assist with an application, use an appropriate representative and ensure that a Use of Representative Form (IMM 5476)[5]<\/a> is filed and included in that application.<\/p>\n

            \n
          1. Document everything!<\/u><\/li>\n<\/ol>\n

            <\/p>\n

            Document everything, as much as possible. Communicate in writing where possible. Of course, calling is a valid method of communication, but it is also a good idea to follow up a call with a short email confirming what was discussed over the call. Make a record of every conversation with your immigration representative and keep a copy of all communications with IRCC. It is a good habit to get into and pretty soon it will feel second nature. No matter how good one\u2019s memory, it will be hard to recall all details after many months. With a detailed record, an applicant can refer to what was discussed previously and maintain a record of what IRCC has received. I can\u2019t count how many times an applicant has come to me saying that they never kept a copy of their application to IRCC and don\u2019t know what was submitted. Keeping a detailed record will save a lot of headaches, save a lot of money, and save a lot of time. For example, if IRCC failed to receive a document and refuses an application, a record of webform or email submission can make all the difference in convincing IRCC to reopen a refused application on reconsideration. Also, look at how important it was in the case of Singh v. Canada (Citizenship and Immigration)[6]<\/strong><\/em><\/a>, wherein Mr. Justice Grant granted the judicial review and reversed the misrepresentation finding:<\/p>\n

            \u201c[45]\u00a0The record also contains email correspondence between the Applicant and Precise Immigration in which the Applicant sought to ensure that the information related to his US visa refusal had been included in the application. As mentioned above, the Intervener responded by indicating that such information had been included, but this was not true. In fact, it appears that this information was never submitted to IRCC.<\/p>\n

            [46]\u00a0Finally, the record also contains an email sent from the Applicant to the Intervener after he had received the procedural fairness letter. In the email, the Applicant clearly articulates confusion as to why he was being asked to explain the reason he had not disclosed information that he thought he had shared. He states:\u00a0\u201cI had no idea about that letter, if I knew it then I would definitely tell you, but if we had already mentioned my overstay in the application then I\u2019m not getting why did the visa officer ask me that question.\u201d<\/p>\n

            \u2026<\/p>\n

            [48]\u00a0As noted above, where there is disagreement between the Applicant and the Intervener as to the factual underpinnings of this application, I have generally found the Applicant\u2019s account to be more reliable. This is because the Applicant\u2019s account finds at least some corroboration in the written record, whereas the Intervener\u2019s version of events is based almost entirely on his recollection of his encounters with the Applicant.<\/p>\n

            \u2026<\/p>\n

            [62]\u00a0This application for judicial review is granted for the reasons set out above.<\/p>\n

            [63]\u00a0Furthermore, similar to the situation in\u00a0Aluthge<\/em>, given my findings that Mr. Singh\u2019s failure to disclose his immigration history in the UK was due to the ineffective assistance of his former consultant, this misrepresentation issue does not need redetermination. In other words, Mr. Singh should not again suffer prejudice as a result of the omission of his UK immigration history from his initial application process.\u201d[7]<\/a><\/p>\n

            Three things that an applicant should look into if receiving a procedural fairness letter with misrepresentation allegations:<\/strong><\/p>\n

              \n
            1. Sooner is better than later and later is better than never!<\/u><\/li>\n<\/ol>\n

              <\/p>\n

              If an applicant has done their due diligence but later finds a mistake in the application, don’t sit on it. The Canadian immigration system is built on trust between the applicant and IRCC, and a genuine mistake that is explained to IRCC as soon as possible is always preferable to waiting for IRCC to discover the issue and send a procedural fairness letter.\u00a0 For example, in the recent case of Ganeshalinggam v. Canada (Citizenship and Immigration)<\/em>[8]<\/a>, Mr. Justice Battista held it was a misapplication of A40(1)(a) by the Immigration Appeal Division to not consider the impact of early error correction in a misrepresentation context:<\/p>\n

              \u201c[44]\u00a0The logical timing of the risk assessment must be the time that a determination of paragraph 40(1)(a) inadmissibility is made. At that time, officers are required to assess all the information before them in deciding whether the misrepresentation could induce a misadministration of the\u00a0IRPA<\/em>, including the timing of an applicant\u2019s disclosure of correct information, the stage of processing of the application, the degree of candidness of the applicant\u2019s disclosure, and the stage of investigations in the application process.<\/p>\n

              [45]\u00a0Thus, I find that the clear language chosen by Parliament narrows misrepresentations under paragraph 40(1)(a) to those capable of inducing an error in the application of the\u00a0IRPA<\/em>. As such, a calculation of the risk of error is required in circumstances involving a voluntary correction to misinformation.\u201d[9]<\/a><\/p>\n

                \n
              1. Was there a mistake through the negligence of the immigration representative?<\/u><\/li>\n<\/ol>\n

                <\/p>\n

                While a licensed immigration representative is not necessary to complete one’s application, there is some additional protection that is afforded to an applicant who is using one. The truth is no one is infallible, and sometimes terrible mistakes are made even by the most experienced lawyers and immigration consultants. If an applicant has made sure that all the necessary and accurate information was provided to the licensed representative in a timely manner, why should the negligent mistake of the licensed representative be attributed to the applicant?<\/p>\n

                If a lawyer or a licensed consultant makes a mistake on an application, even if the allegations are as serious as misrepresentation, there is a possibility of recourse through the doctrine of natural justice (procedural fairness) at the Federal Court following the Court\u2019s established protocol for representative negligence. This does not apply for unlicensed ghost consultants.<\/p>\n

                Take for example, the case of Xiao v. Canada (Citizenship and Immigration)<\/em>[10]<\/a>, where an immigration representative failed to submit a sponsorship application timely and caused the dependent child to become overage by the time IRCC received the application. Justice Ahmed granted the Federal Court application on the basis of incompetent representation and explained:<\/p>\n

                \u201c[56]\u00a0I find that the Consultant\u2019s acts and omissions constitute incompetence that resulted in a miscarriage of\u00a0justice\u00a0and a breach of the Applicant\u2019s right to procedural fairness.\u00a0When the Consultant failed to ensure that the Sponsorship Application was received by IRCC on time, he also failed to be honest and candid with the Applicant about his errors and continued to represent the Applicant at the IAD proceeding.\u00a0As a consequence of his actions, the Applicant was unable to respond to the Officer\u2019s procedural fairness letter, she was unable to fully present her evidence and arguments to the IAD, she did not have the chance to seek out legal advice, and she lost the chance to sponsor her daughter\u2019s immigration to Canada.\u00a0I therefore grant this application for judicial review and refer the matter back for redetermination by a different decision-maker.[11]<\/a>\u201d<\/p>\n

                Following Justice Ahmed\u2019s decision, the Immigration Appeal Division held a new hearing and the appeal was allowed by the Immigration Appeal Division[12]<\/a>!<\/p>\n

                  \n
                1. Is there sufficient information in the procedural fairness letter to make a full and fair response to IRCC?<\/u><\/li>\n<\/ol>\n

                  <\/p>\n

                  The Federal Court explained in Garcia Diaz v. Canada (Citizenship and Immigration)[13]<\/strong><\/a><\/em> that \u201cthere are some circumstances in which an officer is required to make disclosure of specific concerns, issues, facts or documents of which the applicant is unaware, so the applicant knows the case to meet and has a reasonable opportunity to adduce additional evidence and\/or to make submissions in relation to that disclosure.\u201d[14]<\/a> The Court further stated that the context of when these requirements apply are usually when:<\/p>\n