Younes v. Canada (Citizenship and Immigration), 2023 FC 1024 : Misrepresentation Finding Upheld Where Applicant Failed to Disclose Common-Law Relationship and Prior Immigration History

In Younes v. Canada (Citizenship and Immigration), 2023 FC 1024, the Federal Court dismissed judicial review of a refusal of a temporary resident visa (TRV). The Applicant was found inadmissible under paragraph 40(1)(a) of the Immigration and Refugee Protection Act (IRPA) for directly or indirectly misrepresenting or withholding material facts. The Court found that the Officer reasonably concluded that the Applicant was aware of her partner’s previous immigration history and failed to truthfully disclose why she had not been included in his permanent residence application.

Background

The Applicant, a Lebanese citizen and permanent resident of the UAE, had been in a common-law relationship with her partner since 2017. Her partner obtained Canadian permanent residence in 2019 through an application in which he remained identified as the spouse of his former wife, despite having divorced her in 2016 and living with the Applicant. The Applicant later applied for a TRV to visit her partner in Canada.

During a telephone interview, the Applicant stated that her partner had applied many years earlier and did not want to delay his application by adding her. A procedural fairness letter raised concerns that she had withheld material information about his divorce, their common-law relationship, and the circumstances surrounding his permanent residence. She responded that she did not understand that a common-law partner could be included in an immigration application and relied on the advice received by her partner from immigration professionals.

Key Principles

• Applicants Have a Duty of Candour

Section 16(1) of the IRPA requires applicants to answer questions truthfully and provide relevant evidence. A failure to disclose material information can result in inadmissibility under section 40(1)(a), even where the applicant claims that the omission was innocent.

• Materiality Does Not Require a Decisive Effect

A misrepresentation need not be decisive or determinative. It is sufficient that the information is important enough to affect the immigration process and could induce an error in the administration of the IRPA.

Court Findings

• The Officer Reasonably Rejected the Applicant’s Explanation

The Court found that the Officer properly considered the Applicant’s explanations but reasonably concluded that she would have known about her partner’s divorce and the circumstances surrounding his permanent residence. The similarity between the explanations given by the Applicant and her partner also undermined her claim that she was unaware of what had occurred.

• The Withheld Information Was Material to the TRV Application

The Applicant’s purpose in seeking the TRV was to visit her common-law partner. His immigration status was therefore directly relevant. Had his true marital status and common-law relationship been disclosed before he obtained permanent residence, his eligibility for permanent residence could have been affected, which in turn could have affected the assessment of the Applicant’s TRV application.

• Innocent Non-Disclosure Can Still Constitute Misrepresentation

The Court noted that even if an applicant honestly believes they are not required to disclose information, an innocent failure to provide material information can still constitute misrepresentation. The narrow exception for an applicant who honestly and reasonably believed they were not misrepresenting a material fact applies only in truly exceptional circumstances.

Outcome

The Federal Court dismissed the application for judicial review and upheld the Applicant’s five-year inadmissibility finding for misrepresentation. No question of general importance was certified.

Case Citation:

Younes v. Canada (Citizenship and Immigration), 2023 FC 1024 (CanLII)