Misrepresentation on an immigration application to Canada, such as omitting relevant facts, submitting fraudulent documents, misstating marital status, or failing to disclose the existence of children, can lead to severe consequences. These include refusal of the application and a finding of inadmissibility to Canada. Under the Immigration and Refugee Protection Act (“IRPA”), misrepresentation is treated as a particularly serious offence, similar to an absolute liability offence in the criminal law context.
Section 40 of the IRPA defines misrepresentation as directly or indirectly providing false, misleading, or incomplete information, or withholding material facts that could induce an error in the administration of the Act. In practice, this means that your intent is often irrelevant. An applicant generally cannot defend a misrepresentation by claiming forgetfulness, reliance on incorrect advice from counsel or a third party, or a lack of awareness, for example, asserting that they did not know they were required to disclose a child from a previous relationship.
That said, recent jurisprudence has provided some limited relief in certain circumstances. Courts have recognized that, even where misrepresentation is established, applicants may in some cases be permitted to continue processing their applications or obtain a reversal of a negative decision. Nevertheless, misrepresentation remains a serious adverse factor and is not neutralized simply because humanitarian or compassionate considerations exist.
In Canada (Citizenship and Immigration) v. Liu, 2016 FC 460, the Federal Court emphasized that individuals who comply with immigration laws cannot be placed on equal footing with those who obtain status through deception. The Court held that misrepresentation must be weighed when assessing factors such as establishment in Canada and it cannot be ignored or minimized. As the Court stated, failure to consider misrepresentation would improperly elevate an “immigration cheat” to the same status as a law-abiding applicant.
The Court further clarified that while decision-makers retain discretion in determining the weight to assign to misrepresentation, it must always be considered. Whether the impact of the misrepresentation reduces the applicant’s establishment entirely or only partially depends on the specific facts of the case, but it cannot be overlooked. The judiciary has repeatedly stressed that misrepresentation is not a trivial matter and must be treated accordingly.
Ultimately, Canadian courts strive to balance fairness and discretion with the overarching objectives of the IRPA. While relief may be available in exceptional cases, misrepresentation remains a significant and enduring negative factor in immigration decision-making.
