The general consequence of a finding of misrepresentation in immigration applications is very severe – a five-year ban on admission to Canada. The jurisprudence is settled that s40(1)(a) of the IRPA is to be given a broad interpretation in order to promote its underlying purpose. It is important to note that the exception to this rule is narrow. It is applied 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.
Recently, the Court once again examined whether the innocent misrepresentation exception applies when the immigration representative submits the applicant’s application without providing the applicant an opportunity to confirm its accuracy. [Lin v. Canada (Citizenship and Immigration), 2021 FC 1124 (CanLII)]
Ms. Lin submitted a study permit application to attend a Canadian university. In the application, through her agent, she said “no” to the following question: “Have you ever been denied a visa or permit, denied entry or ordered to leave Canada or any other country or territory.” However, Ms. Lin had previously been removed from the United States, and denied entry to the United States over 10 years ago.
At the Court, Ms. Lin’s admitted to her previous encounters with US Immigration and stated they were accidently omitted by her agent. Ms. Lin further argued that the application was not signed by her. In fact, her agent admitted submitting the application without providing Ms. Lin an opportunity to confirm its accuracy.
However, the Court nevertheless found that the innocent mistake exception to s. 40 of the IRPA is not applicable in Ms. Lin’s case and she was inadmissible. The Court’s view as that it was unreasonable to not review her own application. She was still responsible for ensuring that the application was accurate and correct, even if it was submitted by a representative on her behalf. An immigration applicant has a duty of candour, and is to provide complete, accurate, honest, and truthful information when applying for entry to Canada. The Court clearly ruled that the belief that he or she was not misrepresenting an material fact is not reasonable where they fail to review their application and ensure its completeness and veracity.
Therefore, the fact the application was not signed by you is not necessarily the proof of the innocence of misrepresentation. Obviously, there could be some cases where you could still argue the innocent misrepresentation exception – if your representative submits an application without speaking to you and you are completely unaware of the process – However, this is such an extreme example.
I know that many immigrants completely rely on their representatives, especially when English is not their primary language. However, as you can learn from the above case, it is extremely important to communicate with your representative and review the final application together.
