Moon v. Canada (Citizenship and Immigration), 2019 FC 1575 : Misrepresentation Refusal Set Aside Where Consultant Filed Unauthorized eTA and Officer Failed to Consider Innocent Misrepresentation Exception

The Federal Court reviewed the refusal of an electronic travel authorization application based on misrepresentation under paragraph 40(1)(a) of IRPA.

The applicant’s previous immigration consultant had submitted an earlier eTA application without her knowledge and failed to disclose her criminal record. The applicant later discovered the error, returned to South Korea, retained a new consultant, and disclosed the criminal record in a new application.

The Court found the refusal unreasonable because the officer failed to meaningfully assess the evidence showing that the first eTA application had been filed without the applicant’s knowledge or authorization and failed to consider whether her circumstances fell within the narrow innocent misrepresentation exception.

Key Principle

Paragraph 40(1)(a) of IRPA can capture misrepresentations made indirectly through a third party, including an immigration consultant.

However, there is a narrow exception where an applicant honestly and reasonably believed that no material fact was being misrepresented and knowledge of the misrepresentation was beyond the applicant’s control.

Where an applicant produces credible evidence showing that an immigration representative submitted an application without authorization or knowledge, an officer must meaningfully assess whether that evidence brings the case within the exception.

Background

The applicant was a South Korean citizen whose young son had been accepted to attend school in British Columbia.

She retained an immigration consultant to prepare her son’s study permit application and her accompanying visa application. The consultant also submitted an eTA application for the applicant.

The applicant maintained that she had never authorized the eTA application and did not know it had been submitted.

After arriving in Canada, she discovered that the application failed to disclose a criminal record arising from a traffic offence. Correspondence with the consultant confirmed that the consultant had assumed the applicant had no criminal record because she had previously obtained a New Zealand visitor visa.

The applicant returned to South Korea to correct the issue and submitted a new eTA application fully disclosing the criminal record. She also provided evidence showing that she had previously disclosed her criminal history to Canadian authorities in a criminal rehabilitation application and in her husband’s permanent residence application.

Court Findings

The Court found that the officer’s reasons did not adequately explain why the applicant was inadmissible.

The record contained correspondence from the former consultant confirming that the eTA had been filed hurriedly and without proper questions being asked. The applicant also submitted the consultant’s invoice, which contained no charge for preparing an eTA and supported her position that she had never requested the application.

Yet the officer did not meaningfully address this evidence or explain why it was rejected.

The Court accepted that section 40 can apply where a third party commits the misrepresentation without the applicant’s knowledge.

However, it found that this case fell within the narrow exception because the applicant did not know the eTA application had been filed at all. In those circumstances, she could not reasonably have known that information concerning her criminal record was being withheld.

The consultant had admitted to submitting the application without properly consulting her, placing the misrepresentation outside the applicant’s control.

The Court also found that the officer failed to conduct a proper materiality assessment and failed to address the mitigating documentary evidence provided by the applicant.

These deficiencies made the decision unintelligible and prevented the applicant from understanding why the officer rejected her explanation.

Outcome

The Federal Court allowed the application for judicial review, set aside the misrepresentation decision, and remitted the matter to a different officer for redetermination.

Case Citation:

Moon v. Canada (Citizenship and Immigration), 2019 FC 1575 CanLII