The Federal Court reviewed an Immigration Appeal Division
decision finding a permanent resident and his accompanying family members
inadmissible for misrepresentation under section 40(1)(a) of IRPA.
The principal applicant had failed to disclose four previous
U.S. visitor visa refusals when updating his Canadian permanent residence
application.
The Court upheld the IAD’s finding that the omissions were
material because truthful disclosure could have prompted Canadian immigration
authorities to investigate the circumstances surrounding the U.S. refusals
before finalizing permanent residence.
Key Principle
For misrepresentation under paragraph 40(1)(a) of IRPA, the
Minister must establish that:
- there
was a direct or indirect misrepresentation or withholding of information;
- the
information concerned a material fact relating to a relevant matter;
and
- the
misrepresentation induced or could have induced an error in the
administration of IRPA.
A misrepresentation does not have to be decisive to the
ultimate immigration outcome. It may be material where it forecloses an
avenue of inquiry or prevents immigration authorities from conducting further
investigation.
Misrepresentation also does not generally require proof of
an intention to deceive.
Background
The principal applicant applied for permanent residence in
2008 together with his wife and son. The family became permanent residents in
2013.
Between the original application and an updated application
submitted in May 2013, the principal applicant had been refused U.S. visitor
visas on four occasions.
Despite being specifically asked whether he or his family
members had ever been refused a visa by Canada or another country, he answered
“no.”
The U.S. refusals included concerns relating to the
credibility of his claimed business travel, inconsistencies in his
applications, and an allegedly fraudulent invitation letter.
A section 44 inadmissibility report was later prepared, and
the IAD ultimately found the family inadmissible for misrepresentation.
Court Findings
The Court upheld the IAD’s conclusion that the
non-disclosure was material.
Had the four U.S. refusals been disclosed, Canadian
immigration authorities could have made further inquiries into why the visas
were refused and whether U.S. authorities possessed information relevant to the
Canadian permanent residence assessment.
By answering “no,” the applicant effectively closed off
that line of investigation. That was sufficient to meet the materiality
requirement even if disclosure would not necessarily have resulted in refusal
of permanent residence.
The applicant argued that consultants had assisted with the
applications, that he did not understand English, and that he did not
intentionally withhold information.
The Court confirmed that neither third-party assistance nor
the absence of deliberate deception automatically prevents a finding under
section 40. Applicants remain responsible for ensuring that material
information provided to immigration authorities is complete and accurate.
The Court also rejected the argument that the IAD failed to
adequately consider the applicant’s personal circumstances, finding that the
IAD had reviewed the testimony and explanations before rejecting them.
Finally, although one passage of the IAD decision appeared
to incorrectly place the burden of proof on the applicants, the Court read the
decision as a whole and concluded that the IAD had actually required the
Minister to establish the misrepresentation on a balance of probabilities.
Outcome
The Federal Court dismissed all three applications for
judicial review, finding that the IAD reasonably concluded that the
undisclosed U.S. visa refusals constituted material misrepresentation under
section 40(1)(a) of IRPA.
Case Citation:
Yang v. Canada (Public Safety and Emergency Preparedness), 2019 FC 1484 CanLII
Prepared by:
Dr. Muhammad Abrar (Barrister and Solicitor)
Author | Writer | Mentor | Legal Researcher | Canadian Immigration Case Law and Statistics Analyst
