The Federal Court reviewed the refusal of a temporary
resident visa application based on misrepresentation under section 40(1)(a) of
IRPA.
The applicant had answered “no” when asked whether he had
ever been refused a visa or permit, denied entry, or ordered to leave another
country. His prior immigration history in the United States included loss of
student status, an ICE arrest, denial of reinstatement, and an order permitting
voluntary departure in lieu of removal.
The Court found the misrepresentation decision unreasonable
because there was credible evidence that the applicant may actually have
answered the question correctly or, at minimum, honestly and reasonably
believed that his answer was correct.
Key Principle
The innocent misrepresentation exception is narrow, but it
may apply where an applicant honestly and reasonably believes that the
information provided is accurate, particularly where the correct answer
depends on a genuine legal distinction.
Where evidence before the officer directly supports that
possibility, the officer must meaningfully consider whether the exception
applies before imposing the serious consequences of a misrepresentation
finding.
Background
The applicant was a Lebanese citizen living in Ghana who had
previously studied in the United States.
After losing his F1 student status, he was detained by U.S.
immigration authorities. His later application to reinstate that status was
denied. A U.S. immigration judge subsequently granted him voluntary departure in
lieu of an order of removal, and he left the United States within the
permitted period.
Years later, he applied for a Canadian visitor visa to meet
the family of his Canadian fiancée.
When asked whether he had previously been refused a visa or
permit, denied entry, or ordered to leave another country, he answered “no.”
After receiving a procedural fairness letter, he submitted a
legal opinion from a U.S. immigration lawyer explaining that his visa had been
voided rather than refused and that voluntary departure was not the same as
being ordered removed.
Court Findings
The Court emphasized that this was not an ordinary case
where an applicant forgot an immigration event, misunderstood its relevance, or
attempted to correct an inaccurate answer only after being caught.
There was a genuine question as to whether “no” was legally
the correct answer.
The voluntary departure order expressly stated that
departure was granted in lieu of an order of removal. The Court
therefore found that the distinction was not merely semantic.
The online application was also significant. Only applicants
answering “yes” were provided with space to give further details. If the
applicant honestly believed “no” was correct, the form did not invite him to
provide the underlying U.S. immigration history.
The Court held that where the form did not request
additional information following a “no” answer, the failure to volunteer that
information could not itself establish misrepresentation.
The officer also failed to meaningfully address the U.S.
lawyer’s opinion. The officer was not required to accept it, but because it
directly contradicted the foundation of the misrepresentation finding, it had
to be considered and addressed.
The seriousness of the five-year inadmissibility consequence
reinforced the need for careful reasoning.
The Court also found the separate temporary-intent
assessment unreasonable because it rested heavily on the misrepresentation
finding and failed to engage with evidence of the applicant’s business
interests in Ghana and the documented family purpose of his visit.
Outcome
The Federal Court allowed the application for judicial
review, set aside the TRV refusal and misrepresentation finding, and
remitted the application to a different visa officer for redetermination.
Case Citation:
Sbayti v. Canada (Citizenship and Immigration), 2019 FC 1296 CanLII
Written by:
Dr. Muhammad
Abrar (Barrister and
Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and
Statistics Analyst
