The Federal Court reviewed the refusal of a Temporary
Resident Visa application and a five-year finding of inadmissibility for
misrepresentation.
The applicant answered that he had never been refused a visa
by another country. After receiving a Procedural Fairness Letter, he disclosed
some prior U.S. immigration history, but failed to disclose additional U.S.
visa refusals. The Court upheld the officer’s conclusion that the omissions
were material and did not fall within the narrow innocent error exception.
Key Principle
Applicants have a broad duty of candour to provide
complete and truthful information in immigration applications.
The innocent misrepresentation exception applies only where
an applicant can establish both that:
- they honestly believed they were
not withholding material information; and
- that belief was objectively
reasonable in the circumstances.
The exception is narrow and generally applies only in truly
exceptional circumstances. Forgetfulness, uncertainty, or failure to
investigate the status of a prior visa application will not necessarily be
sufficient.
Background
The applicant, a Saudi Arabian citizen and Canadian business
executive, applied to renew his TRV in 2017.
He answered “no” to the question asking whether he had
previously been refused a visa. IRCC issued a PFL advising that there were
concerns about the truthfulness of this answer and warning that a
misrepresentation finding could result in a five-year period of
inadmissibility.
In response, the applicant first disclosed that he had
mistakenly crossed into the United States at the Niagara border and was unsure
whether that incident constituted a refusal. He later advised that he had
remembered a 2015 U.S. visa refusal.
The officer nevertheless discovered additional U.S. visa
refusals from 2013 and 2017 that had not been disclosed and concluded that the
applicant had not been truthful.
Court Findings
The applicant argued that the PFL was procedurally unfair
because it did not specifically identify every U.S. visa refusal.
The Court rejected that argument. The PFL expressly advised
the applicant that the officer believed he may not have been truthful about
prior visa or permit refusals. That was sufficient to place him on notice of
the concern and give him an opportunity to respond.
The Court noted that an applicant exercising reasonable
diligence could have investigated the status of prior applications or, at
minimum, disclosed that an earlier application had been made and that its
outcome was uncertain.
The Court also rejected the innocent error argument.
The applicant was an experienced businessman with prior
immigration experience and had sufficient information to make further inquiries
about his earlier U.S. applications. The Court found it difficult to accept
that he reasonably believed years later that the application remained
unresolved or that no disclosure was required.
The fact that he may not have known the precise result of
one earlier application did not excuse the failure to disclose the existence of
that application when specifically questioned about his prior immigration
history.
Finally, the Court held that the omissions were material
because they prevented the officer from investigating information relevant to
the TRV assessment. Under the broad interpretation of section 40 of IRPA, it is
for the immigration officer, not the applicant, to determine what information
is relevant to the application.
Outcome
The Federal Court dismissed the application for judicial
review, upholding both the misrepresentation finding and the resulting
five-year period of inadmissibility.
Case
Citation:
Alkhaldi v. Canada (Citizenship and Immigration), 2019 FC 584 CanLII
Prepared by:
Dr. Muhammad Abrar (Barrister and Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst
