Song v. Canada (Citizenship and Immigration), 2019 FC 72 : Permanent Residence Misrepresentation Refusal Set Aside Where Officer Failed to Explain Why Incorrect Employer Name Was Material

In Song v. Canada (Citizenship and Immigration), 2019 FC 72, the Federal Court considered the refusal of a permanent residence application under the Prince Edward Island Provincial Nominee Program, Business Impact Category.

The application was refused for misrepresentation under section 40(1)(a) of IRPA because the dependent spouse had incorrectly identified the name of an employer where she had worked from 1993 to 1997. Although the Court accepted that providing the incorrect employer name could constitute a misrepresentation, it found the officer had failed to explain why the error was material.

Key Principle

Not every incorrect statement automatically justifies inadmissibility for misrepresentation.

For section 40(1)(a) of IRPA to apply, the misrepresented or withheld fact must be material, meaning it must be sufficiently important that it could affect the immigration decision-making process or induce an error in the administration of IRPA.

An officer must therefore explain how the particular incorrect information was material in the circumstances of the application. Simply repeating the statutory language that the information “could have induced an error” is insufficient.

Background

The applicants applied for permanent residence through the PEI Provincial Nominee Program. In the spouse’s Schedule A form, she stated that she had worked as an Assistant Engineer at the “Xi’an Qinghua Mechanical and Electrical Institute.”

IRCC discovered information indicating that her employer was identified elsewhere as the Military Arsenal Industry No. 203 Research Institute. After receiving a procedural fairness letter, the applicants explained that the correct external name was the Shaanxi Qinghua Mechanical and Electrical Institute, while the No. 203 Research Institute was another name for the same organization.

The officer accepted that the organization had different internal and external names but concluded that the applicants had nevertheless misrepresented the employer’s correct name and refused the application under section 40 of IRPA.

Court Findings

The Court agreed that the incorrect employer name could constitute a misrepresentation, even if the mistake was innocent. Section 40 does not generally require an intention to deceive, and the innocent-mistake exception is narrowly applied.

However, the decisive issue was materiality.

The spouse had accurately disclosed that she worked as an Assistant Engineer between 1993 and 1997, the location of the employment, and the relevant dates. The only incorrect information was the precise name of the institution.

The officer merely stated that the incorrect name could have resulted in visas being issued without complete information necessary to assess admissibility. The Court found this reasoning inadequate because it simply reproduced the language of section 40 without explaining how the incorrect employer name could actually have affected the immigration process, particularly when the remaining employment information was accurate.

The Court emphasized that a serious finding of misrepresentation, which carries significant immigration consequences, must be supported by intelligible reasons explaining the materiality of the error.

Outcome

The Federal Court allowed the application for judicial review, set aside the permanent residence refusal, and returned the matter for reconsideration by a different immigration officer.

Case Citation:

Song v. Canada (Citizenship and Immigration), 2019 FC 72 CanLII