October 24, 2016

Immigration Misrepresentation Cases on the Rise!

We have noticed a sharp increase in misrepresentation cases and assume in large part it is because the consequences are serious enough for most individuals caught by this provision to challenge  (i.e., 5-year bar) – where previously the individual may have simply re-applied.  Due to the nature of the five-year bar for re-application, a submission to immigration authorities, the Immigration Appeal Division or the Federal Court are becoming better options for resolution if the admissibility finding was made without procedural fairness, in a manner contrary to law, or if the decision is unreasonable. A further benefit is clearing an individual’s immigration record. If the misrepresentation finding remains unchallenged, that admissibility finding will stay with the individual for all future applications and interactions with immigration authorities.

It is also possible although unusual for penal charges to be laid under the Immigration and Refugee Protection Act (IRPA) for misrepresentation:

127. No person shall knowingly

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

b)communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada; or

c)refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this Act.

128.  A person who contravenes a provision of section 126 or 127 is guilty of an offence and liable

a) on conviction on indictment, to a fine of not more than $100,000 or to imprisonment for a term of not more than five years, or to both; or

b) on summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both.

The British Columbian Court in R. v. Zhao, 2013 BCPC 227 (B.C. Prov. Ct.) sentenced an individual to a 90 day custodial sentence in the community under section 127. The Defendant used a false passport in order to obtain a study permit in Canada. He entered Canada and studied under this false name. He then made a refugee claim under his real name, alleging that he faced persecution in China (during the same period that he was in fact studying in Canada). The Defendant was granted refugee protection and obtained permanent residence in Canada. He then sponsored his wife and their daughters to Canada, all of whom received Canadian citizenship. Years later the Defendant applied for a new B.C. driver’s license and through facial recognition software this application was matched to the driver’s license he possessed under his false name a decade previous. The Canada Border Services Agency investigated and arrested the Defendant, upon which he was fully cooperative with the investigation.

The case of Zhao is certainly an extreme example, but it demonstrates that the CBSA has latitude in deciding how to address misrepresentation findings.  In this case, had the CBSA pursued deportation over penal charges the outcome would potentially have been the appeal being allowed for H&C grounds. The Defendant had been in Canada over a decade, his wife and children were Canadian citizens, he had stable employment and supported his family. In such circumstances, a penal proceeding was likely to punish the Defendant more than an immigration proceeding.

In all, we have had success in challenging misrepresentation cases where the net was cast too wide by immigration officials or they failed to consider the whole of the evidence or the investigation stopped short of uncovering the truth and instead jumped to a conclusion of misrepresentation.  Misrepresentation cases are fascinating and it is encouraging that where appropriate, these cases have been successfully challenged.

To learn more about misrepresentation cases, please click here.