The
Federal Court dismissed a judicial review challenging a finding of
inadmissibility for misrepresentation under section 40(1)(a) of the Immigration
and Refugee Protection Act (IRPA). The applicant argued that he
unintentionally failed to disclose that he was legally separated when obtaining
an open work permit as the spouse of a skilled worker. The Court held that
applicants have a duty to ensure their applications are complete and accurate,
and an innocent omission will generally not excuse material misrepresentation.
Key
Principle
A
foreign national has a continuing duty of candour when dealing with Canadian
immigration authorities. Even an innocent or unintentional omission of a
material fact may constitute misrepresentation under section 40(1)(a) of the
IRPA unless the applicant can establish the narrow exception that the omission
was honestly and reasonably made and the relevant knowledge was beyond their
control.
Background
The
applicant obtained an open work permit as the spouse of a skilled worker. When
he later applied for permanent residence, IRCC discovered that he and his
spouse had been living separately for over a year before the work permit was
issued, although they remained legally married.
Following
a Procedural Fairness Letter, the applicant explained that he believed he
remained “married” because no divorce had been finalized and was
unaware that Canadian immigration law treated individuals living apart as
legally separated. The officer nevertheless found that the applicant had
withheld a material fact that affected his eligibility for the work permit and
refused his permanent residence application for misrepresentation.
Court
Findings
•
Applicants Must Ensure Their Applications Are Complete and Accurate
Justice
Strickland held that applicants bear the responsibility of understanding and
accurately disclosing information material to their immigration applications.
The duty of candour requires applicants to provide complete and truthful
information, even where the omission is unintentional.
•
Innocent Misrepresentation Is a Narrow Exception
The
Court reaffirmed that an innocent mistake does not generally prevent misrepresentation.
The exception applies only in exceptional circumstances where the applicant
honestly and reasonably believed no material fact was being withheld and the
relevant knowledge was beyond their control. Those circumstances were not
established in this case.
•
The Applicant’s Separation Was a Material Fact
The
Court found that the applicant’s separation was directly relevant to his
eligibility for an open work permit as the spouse of a skilled worker. Had the
separation been disclosed, he would not have qualified for the work permit. The
officer therefore reasonably concluded that the omission constituted a material
misrepresentation capable of inducing an error in the administration of the
IRPA.
Outcome
The
Federal Court dismissed the application for judicial review, confirming that
the applicant was inadmissible for misrepresentation under section 40(1)(a) of
the IRPA. The decision reinforces that applicants must proactively disclose all
material facts and cannot rely on an innocent misunderstanding of immigration
terminology to avoid misrepresentation.
Case
Citation:
Coube De Carvalho v. Canada (Citizenship and Immigration), 2019 FC 1485 (CanLII)
Prepared by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian
Immigration Case Law and Statistics Analyst
