Coube De Carvalho v. Canada (Citizenship and Immigration), 2019 FC 1485 : Misrepresentation Finding Upheld Where Applicant Failed to Disclose Separation While Obtaining Spousal Open Work Permit

The Federal Court reviewed the refusal of a Canadian Experience Class permanent residence application based on misrepresentation under section 40(1)(a) of IRPA.

The applicant had previously obtained an open work permit as the spouse of a skilled worker. At the time that permit was issued, however, he and his wife had already been living separately for more than a year and had entered into a custody agreement concerning their children.

The Court upheld the finding that the applicant had withheld a material fact concerning his marital status, even though the omission was accepted as innocent rather than deliberate.

Key Principle

An applicant has a continuing duty of candour to provide complete, accurate, and truthful information to Canadian immigration authorities.

Misrepresentation under section 40(1)(a) does not require an intention to deceive. An innocent omission may still constitute misrepresentation where a material fact was within the applicant’s knowledge and control.

The innocent misrepresentation exception is narrow. It generally applies only in exceptional circumstances where the applicant honestly and reasonably believed that no material fact was being withheld and the relevant knowledge was beyond the applicant’s control.

Background

The applicant was a Brazilian citizen who came to Canada with his spouse, who held a study permit. He initially obtained an open work permit as her spouse.

In November 2017, he obtained a second open work permit under the exemption applicable to spouses of skilled workers.

However, the couple had experienced marital difficulties since 2016. They had stopped living together, and a custody agreement regarding their two sons was signed in November 2016. Their later divorce application stated that they had separated on August 1, 2016.

When the applicant subsequently applied for permanent residence under the Canadian Experience Class, IRCC became concerned that he had not disclosed his separation when obtaining the 2017 work permit.

In response to a procedural fairness letter, the applicant explained that he still considered himself married, believed reconciliation was possible, and stated that in Brazilian culture a person remained married until a formal divorce was granted.

Court Findings

The Court accepted that the omission was not intentional.

However, that did not resolve the misrepresentation issue.

The applicant’s eligibility for the open work permit depended directly on his relationship with his spouse. Although they remained legally married, the applicable immigration definition of “legally separated” included persons who were married but no longer living with their spouse.

The Court found that the applicant knew the relevant underlying facts: he and his wife had stopped cohabiting, had established separate living arrangements, and had entered into a custody agreement.

The fact that he did not appreciate the immigration meaning of “legally separated” did not place the relevant information beyond his control.

The Court also noted that although there was no written work permit application at the port of entry documenting an express false statement, the applicant nevertheless had a duty to voluntarily disclose his separation, particularly because he knew his eligibility for the work permit was based on being the spouse of a skilled worker.

The omitted fact was material because, had the separation been disclosed, the applicant would not have qualified for the spousal open work permit on the same basis. The omission therefore induced an error in the administration of IRPA.

The Court also addressed the potential hardship to the applicant’s two children. While family separation could potentially support a future H&C application, proportionality or hardship was not a defence to a properly established section 40 misrepresentation finding in the application before the officer.

Outcome

The Federal Court dismissed the application for judicial review, finding that the officer reasonably concluded that the applicant had withheld a material fact concerning his marital status and was inadmissible for misrepresentation under section 40(1)(a) of IRPA.

Case Citation:

Coube De Carvalho v. Canada (Citizenship and Immigration), 2019 FC 1485 CanLII