When an immigration officer tells you that they have concerns that you may have engaged in misrepresentation (that you have provided them with an untrue statement of fact), this is an accusation that has serious immigration ramifications if it results in a misrepresentation finding.
In this article, we will consider the following questions:
What if it is a misunderstanding and not a misrepresentation?
What if it was an honest mistake or if I had no knowledge of the misrepresentation?
Can I argue that it shouldn't count as misrepresentation because, even if I had provided the correct information in the first place, it wouldn't have changed the outcome of my case anyway?
Asides from explaining what happened, is there anything else I can do?
In the context of a pending application, when an officer believes you may have committed misrepresentation, they will tell you about their misrepresentation concerns (usually in the form of a letter but possibly in the form of a verbal statement at an interview) and then give you an opportunity to respond. If you receive such a letter or verbal statement, the first thing you should do is to consult with an immigration law practitioner. The Federal Court has held that an immigration officer must give an applicant an opportunity to respond to their misrepresentation concerns before they can make a misrepresentation finding against you. In other words, the officer is not giving you a chance to respond out of kindness. Rather, they are giving you a chance to respond because it is a legal step that they must take before they can make the finding that you are inadmissible to Canada for misrepresentation and refuse your application.
What if it is a misunderstanding and not a misrepresentation?
We handled a permanent resident application in which the officer requested that the applicant response to a misrepresentation concern. The officer had noticed that one of the applicant's identification documents listed the applicant as having worked at a hospital that he had not declared in the employment history section of his application forms. The officer believed that my client may have committed misrepresentation by failing to disclose his past employment at this hospital. The explanation was simple: my client had listed the hospital in his forms under the hospital's former name whereas the identification document had listed the same hospital under its the current name. In other words, my client had not failed to disclose an employer. He merely disclosed the employer under a different name.
When explaining to an officer that they are misinterpreting the evidence, it is important that you also provide evidence that corroborates the correct interpretation of the evidence. In the case referred to above, we not only provided a written explanation in the form of a sworn affidavit, but we also provided corroborating evidence of the fact that the hospital listed in the forms and the hospital listed in the identification document were both referring to the same hospital, including a letter from the hospital director. Our response package satisfied the officer's concerns and the PR application was approved shortly thereafter.
Where an officer is misinterpreting the evidence, there is a risk that the officer will not be persuaded by your explanation and proceed to refuse your application due to misrepresentation even if you provide corroborating evidence. Our firm always recommends that you consult with an immigration law practitioner to assist you in responding to misrepresentation allegations.
What if it was an honest mistake or if I had no knowledge of the misrepresentation?
As a general rule, an immigration officer is allowed to (and often do) make a misrepresentation finding even where the person explains that the misrepresentation was accidental and/or without ill intent. While there are exceptions to this general rule, such as where an applicant can demonstrate that they honestly and reasonably believe that they were not withholding material information, these exceptions are very narrow. For example, the honest mistake exception has been described by the courts as applying only to "truly exceptional circumstances" (as an example, see the case of Oloumi v. Canada (MCI), 2012 FC 428). Where our client is relying on one of these exceptions, we do not merely respond with an explanation and any evidence that the client has to corroborate their explanation, but we also respond by citing court cases and walking the officer through why an exception applies to our client's case.
Even in cases where an applicant asserts that the misrepresentation was committed by their agent, decision makers will generally still hold the applicant responsible since they signed off on the application, citing Federal Court cases like Oloumi v. Canada (MCI), 2012 FC 428, Cao v. Canada (MCI), 2010 FC 450, and Haque v. Canada (MCI), 2011 FC 315). Applicants have on occasion been held not responsible for misrepresentation committed by their agent, but such occurrences are rare. For these reasons, we recommend that you "lawyer up" even where the misrepresentation was unintentional, done without malice and/or done without your knowledge.
Can I argue that it shouldn't count as misrepresentation because, even if I had provided the correct information in the first place, it wouldn't have changed the outcome of my case anyway?
Sometimes, an untrue statement of fact does not count as material misrepresentation because it could not have led the officer to making the wrong decision. Such cases are tricky. Generally speaking, people who have withheld their past criminality (misrepresentation by omission) have been found to have committed misrepresentation even where their past criminality, had it been disclosed, would not have led to a refusal decision.
In some cases, the courts have held that inaccuracies in employment history do not court as material misrepresentation. The courts have found in other cases that inaccuracies in employment history do count as material misrepresentation. Where it is appropriate to argue that the inaccurate statement of fact is not significant enough to be a material fact that could have induced the wrong decision, we advocate this position by applying the favourable court cases to your case specific circumstances.
Asides from explaining what happened, is there anything else I can do?
When responding to a misrepresentation allegation, you may be able to request that a misrepresentation finding, if made, ought to be waived on humanitarian and compassionate ("H&C") grounds. The word "may" is used because it depends on the type of case. For example, you can request H&C relief in response to an IRCC or CBSA officer inviting you to respond to their misrepresentation concerns and at misrepresentation proceedings before the Immigration Appeal Division, but you cannot request H&C relief at misrepresentation proceedings before the Immigration Division.
To summarize, when you are accused of committing misrepresentation, several options may be available to you, including: (1) explaining why it is a misunderstanding and not misrepresentation, (2) asserting that the misrepresentation falls under an exception, (3) asserting that the untruth statement does not rise to the level of misrepresentation because it does not concern a material fact that could have induced induced an error, (4) requesting that any misrepresentation findings be waived on H&C grounds, (5) asserting some combination of the aforementioned options. The option(s) that you should take will depend on an assessment of the law on misrepresentation as it applies to your specific circumstances. Generally speaking, I recommend getting an immigration law practitioner to assist you in making this assessment and in responding to the misrepresentation allegations against you.
- Raymond Lo, August 10, 2020
Disclaimer: This article was prepared to provide general legal information. General legal information is not a substitute for obtaining case-specific legal advice from competent counsel. Additionally, please keep in mind that the information in this article may become dated as Canadian immigration laws and policies are constantly changing.