Section 40 of the Immigration and Refugee Protection Act makes a permanent resident or a foreign national inadmissible to Canada for misrepresentation in four defined situations, and then sets a five-year period during which that inadmissibility continues. Most people who hear the word think only of the first situation — a false answer on a form — but the section is wider than that, and the five-year period is counted differently depending on where the finding is made.
Angelina Shuster is a paralegal licensed by the Law Society of Ontario, and representation before Immigration and Refugee Board tribunals, including the Immigration Division and the Immigration Appeal Division, falls within a licensed paralegal's scope. What follows is general information about the wording of the Act and the procedure around it. It is not legal advice, and reading it does not create a paralegal-client relationship. An earlier article looks at how the courts have treated misrepresentation; this one goes through the section itself, clause by clause.
What are the four grounds of misrepresentation in section 40(1)?
Section 40(1) lists four paragraphs, and a person is inadmissible if any one of them applies. Only paragraph (a) is about something the person said or left out. The other three attach inadmissibility to a decision made about someone else, or to a decision that undoes an earlier grant of status.
| Paragraph | What makes the person inadmissible |
|---|---|
| 40(1)(a) | Directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the Act |
| 40(1)(b) | Being, or having been, sponsored by a person who is determined to be inadmissible for misrepresentation |
| 40(1)(c) | A final determination to vacate a decision that allowed their claim for refugee protection or application for protection |
| 40(1)(d) | Ceasing to be a Canadian citizen under the revocation provisions of the Citizenship Act listed in the paragraph |
Paragraph (c) connects to section 109, under which the Refugee Protection Division may vacate a decision to allow a claim if it was obtained by misrepresenting or withholding material facts. Paragraph (d) connects to citizenship revocation for false representation, fraud or knowingly concealing material circumstances. In both, the person becomes inadmissible because another decision-maker has already made a finding.
What does paragraph 40(1)(a) require, word by word?
Paragraph (a) has four working parts: a misrepresentation or a withholding, of a material fact, relating to a relevant matter, that induces or could induce an error. Each part narrows or widens the rule, and the Federal Court has interpreted most of them.
- "Directly or indirectly." The misrepresentation does not have to come from the applicant personally. The Federal Court has read "indirectly" to cover a false statement made by a third party — a representative, an agent, an employer or a family member — in an application the person is part of.
- "Misrepresenting or withholding." Silence counts. Leaving out a fact that was asked for, such as a previous refusal, a dependent child or an earlier marriage, is treated the same way as stating something untrue.
- "Material facts relating to a relevant matter." The fact has to matter to the application. It does not have to be decisive: the courts have held that a fact can be material where it could affect how the application is processed, even if the application might have been approved anyway.
- "Induces or could induce an error." An actual error is not required. It is enough that the misrepresentation could have led an officer into one, which is why a false document caught before any decision was made can still found a finding.
The paragraph says nothing about intent. Section 16(1) of the Act separately requires every applicant to "answer truthfully all questions put to them for the purpose of the examination", and the two provisions are read together. The courts have recognised a narrow exception, traced to the Federal Court of Appeal's decision in Medel, for a person who honestly and reasonably believed they were not withholding anything and where the knowledge of the fact was beyond their control. The exception is applied strictly and its availability depends on the facts found in each decision.
How long does inadmissibility for misrepresentation last?
Five years, under section 40(2)(a). What differs is the date the five years start from, and that depends on where the determination is made.
| Where the finding is made | When the five years start |
|---|---|
| Outside Canada — typically a visa office refusing an application | From the final determination of inadmissibility |
| In Canada — through a report and a removal order | From the date the removal order is enforced, meaning the date the person actually leaves Canada |
The in-Canada rule has a practical consequence: time spent in Canada after a removal order is made, while the order is under appeal or not yet enforced, does not count toward the five years. The clock runs only once the person has departed.
Section 40(3) adds a further restriction. A foreign national who is inadmissible under section 40 may not apply for permanent resident status during that five-year period. The bar is on applying at all, not only on being approved.
When does paragraph 40(1)(b) apply to a sponsored person?
Only when the Minister is satisfied that the facts justify it. Section 40(2)(b) says paragraph (b) "does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility". A person sponsored by someone later found to have misrepresented is therefore not automatically inadmissible; the Minister has to look at the facts of that sponsorship and reach a conclusion about them.
The situation this paragraph is aimed at is status gained through a chain: a person obtains permanent residence by misrepresentation, then sponsors a spouse or relative. When the first person's misrepresentation is determined, the second person's status can be examined under paragraph (b) even if they said nothing untrue themselves.
Which removal order follows a misrepresentation finding?
It depends on which paragraph of section 40(1) applies, and the Division or officer does not choose. Sections 228 and 229 of the Immigration and Refugee Protection Regulations prescribe the order.
| Ground | Who makes the order | Order |
|---|---|---|
| 40(1)(a) or (b) | Immigration Division, after an admissibility hearing | Exclusion order, unless the exceptions in s. 229(3) apply |
| 40(1)(a), relating to a visa exemption when applying for an electronic travel authorization | Minister's delegate, without a hearing | Exclusion order |
| 40(1)(c) — refugee protection vacated | Minister's delegate, without a hearing | Deportation order |
| 40(1)(d) — citizenship revoked | Immigration Division, after an admissibility hearing | Deportation order |
Section 229(3) turns the exclusion order into a deportation order where the person was previously subject to a removal order on the same grounds, has failed to comply with a condition or obligation imposed under the Act, or has been convicted in Canada of an offence punishable by way of indictment.
An exclusion order for misrepresentation also carries a longer return rule than an ordinary one. Section 225(3) of the Regulations requires written authorization to return to Canada within five years after the order is enforced, instead of the usual one year. A deportation order requires written authorization to return with no time limit. The differences between the three orders are set out in the article comparing departure, exclusion and deportation orders.
How is a misrepresentation finding made in practice?
Outside Canada, it is usually made by a visa officer deciding an application. Before refusing on this ground, officers commonly send a procedural fairness letter setting out the concern and giving the applicant an opportunity to respond in writing. The refusal letter then records the finding and the five-year period.
Inside Canada, an officer who believes a permanent resident or a foreign national is inadmissible prepares a report under section 44, and, apart from the cases where the Regulations let the Minister's delegate make the order directly, the Minister refers it to the Immigration Division. The admissibility hearing is where the Minister's counsel sets out the alleged misrepresentation and the person concerned can answer it. Misrepresentation is outside sections 34 to 37, so the ordinary civil standard — the balance of probabilities — applies rather than the lower "reasonable grounds to believe" standard.
Is there an appeal from a misrepresentation finding?
Sometimes, and the answer turns on who the person is and what kind of decision it was. Section 64(1) of the Act lists the grounds that remove an appeal to the Immigration Appeal Division entirely, and misrepresentation is not among them.
| Situation | Appeal to the IAD? |
|---|---|
| Permanent resident or protected person given a removal order for misrepresentation | Yes, under s. 63(3) |
| Foreign national holding a permanent resident visa given a removal order | Yes, under s. 63(2) |
| Family-class sponsorship refused for misrepresentation, where the applicant is the sponsor's spouse, common-law partner or child | Yes, under s. 63(1) |
| Family-class sponsorship refused for misrepresentation, any other relative | No — s. 64(3) removes it |
On an appeal, the IAD may consider whether the removal order or refusal is valid in law and in fact, and, for most appellants, whether humanitarian and compassionate considerations warrant special relief. Where no appeal exists — a visa refusal of a temporary resident application abroad, for example — the route is an application for leave and judicial review in the Federal Court, which reviews the reasonableness of the decision rather than re-hearing the evidence.
Karb Law appears at the Immigration Division on admissibility hearings and before the Immigration Appeal Division on sponsorship appeals and removal order appeals. Our legal team assists with the full range of your matter, including applications filed with IRCC. Anyone who has received a procedural fairness letter, a refusal or a notice of hearing can contact the office to discuss representation.
