[Immigration Law] Inadmissibility – Misrepresentation (Subsection 40(1)(a) of the IRPA)

[Immigration Law] Inadmissibility – Misrepresentation (Subsection 40(1)(a) of the IRPA)

21 May, 2022

Inadmissibility – Misrepresentation

**(Subsection 40(1)(a)of the IRPA)**

Being found inadmissible to Canada involving misrepresentation is becoming gradually increasing. According to section 40(1) (a) of the Immigration and Refugee Protection Act (“IRPA”) of Canada, if a permanent resident or foreigner directly or indirectly misrepresents or withholds facts relating to themselves, the individuals are prohibited from entering Canada, applying for a visa, or permanent residence for 5 years. Also if you are currently in Canada, you may receive an order of deportation, your legal status will be revoked and you will be marked under the Immigration, Refugees and Citizenship Canada (“IRCC”) fraud record.

Definition of Misrepresentation

Misrepresentation is an intentional change of facts or information to another person. It is broadly worded in the IRPA and, therefore, it is broadly interpreted. Misrepresentation occurs when information is provided to the IRCC or Canada Border Services Agency (“CBSA”) that is inaccurate, inconsistent, or not complete. Misrepresentation is an intentional change of facts or information to another person. It is broadly worded in the IRPA and, therefore, it is broadly interpreted. Misrepresentation occurs when information is provided to the IRCC or Canada Border Services Agency (“CBSA”) that is inaccurate, inconsistent, or not complete.

Misrepresentation is defined in section 40(1)(a) of the IRPA.

40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

(b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

(c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or

(d) on ceasing to be a citizen under

(i) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force,

(ii) subsection 10(1) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act, or

(iii) subsection 10.1(3) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act.

Application

(2) The following provisions govern subsection (1):

(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

(b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

Examples of Misrepresentation

Misrepresentation might be caused by the applicant, a family member, or a representative. However, in all those cases, it is the principal applicant who is at fault, even if he/she did not recognize the misrepresentation that occurred.

Misrepresentation includes activities such as:

Providing false or incorrect information to the IRCC or CBSA
Deliberately withholding information which can make you inadmissible to Canada even though that information has not been asked directly
Providing a non-genuine document to the IRCC or CBSA
Failing to declare that you have been refused a visa for another country
Declaring false employment experience while providing a doctored resume and/or work reference letter
Providing altered or false travel documents such as passports, visas, etc.
Providing altered or false educational documents including diplomas, degrees, transcripts, credential evaluations, apprenticeship documents
Providing doctored certificates of police clearance (e.g. the Criminal (Investigation) Records Check Reply including lapsed criminal in the Republic of Korea)
Obtaining permanent residence by having engaged in a non-genuine marriage

Overcoming the Misrepresentation Allegation

Even though Misrepresentation is a critical issue that can cause deportation orders, there is still an opportunity for you to respond and address IRCC’s concerns. Our lawyer, Joshua Yang, has assisted our clients in handling misrepresentation allegations by responding to the IRCC whether in an interview or on paper after they have received a procedural fairness letter (“PFL”). If an allegation of misrepresentation has been raised by IRCC, Joshua Yang also can defend his client in the Admissibility Hearing at the Immigration and Refugee Board (“IRB”). Lastly, even if an inadmissibility decision has been made by the IRCC or CBSA, Joshua Yang can represent and assist clients with challenging the decision at the Federal Court through Judicial Review.

Information contained on this website is intended as general introductory information only. The information contained on this website is not legal advice. It should not be construed as legal advice and should not be relied upon as such. No solicitor-client relationship arises as a result of accessing or reading the information contained on this website.

Posted in: Immigration Law

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