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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:

  1. 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

  2. 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.