Avoid Visa Refusals & Misrepresentation
Updated: Feb 24, 2020
Have you ever wondered how to answer the question: have you ever been refused a visa to Canada or any other country before? This is a common question across all temporary residence and permanent residence application forms. How you answer it is crucial to the disposition of your current application and possible future misrepresentation findings.
Section 40 of the Immigration and Refugee Protection Act (IRPA) states:
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 […].
Misrepresentation is considered to be material if it is important enough to effect the process. In other words, did the misrepresentation effect the decision-makers ability to make a fair and reasonable assessment based on the information provided? There is an exception for innocent mistakes, which has been applied very narrowly by the courts. There are two criteria which must be satisfied for the innocent mistake exception to apply:
The decision maker must ask whether the person honestly believed that he was not making a misrepresentation; (knowledge of the misrepresentation must be beyond the applicant's control) and
The decision maker must ask whether it was reasonable on the facts that the person believed that he was not making a misrepresentation.
It is therefor very important to ensure that the aforementioned question regarding previously refused visas to Canada or any other country be answered correctly and that the applicant fully understands the implications of a misrepresentation finding. To follow, are some scenarios as well as the outcome that could potentially occur in response to that scenario:
- A misrepresentation can occur even if an applicant provides clarification or correction in response to a procedural fairness letter.
- Just because an applicant receives subsequent approvals on applications, does not mean that they can fail to declare the first refusal.
- Just because IRCC has access to a client’s file (which would have information about a prior refusal), does not mean that the failure to declare it will not be material. A determinative misrepresentation can occur without the applicant’s knowledge ie. a representative.
- Just because an application was refused a very long time ago, does not mean that it will be reasonable for an applicant to omit it on their application. It does not matter that the applicant thinks that the prior refusal is not relevant. Motive does not equate innocence. For instance, it will not matter that an applicant failed to disclose a prior refusal because they thought that subsequent approvals or a long passage of time made it irrelevant.
- It may not be enough for an applicant to say that he or she did not know about a prior application’s status if it had been submitted many years prior. They are expected to state that they are unsure of its status, or to follow up on the application, especially if they are sophisticated and familiar with immigration processes. Even if an applicant selects “yes” to the question “Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country?”, they are expected to reference all prior refusals and a failure to reference one of them may lead to an misrepresentation finding.
In conclusion, we would like to highlight the importance of the aforementioned question for all our readers as well as to highlight the options of how to answer it properly. If an innocent mistake did exist in the past, it is best to correct it on a future application. In other words, a misrepresentation finding does not go away with time, or with subsequently approved visas or with lack of knowledge. It is best to deal with every situation on a case-by-case basis and to address it completely. What one is risking is essentially equivalent to two to five years ban from entering Canada if found to have been inadmissible on the grounds of misrepresentation. See our earlier post about possible grounds for refusal of a visa.
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