IRPA section 40 can make a permanent resident or foreign national inadmissible 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 the Act.
Five-year consequence
Under the current legislation, misrepresentation inadmissibility generally continues for five years. For a determination made outside Canada, the period runs from the final determination of inadmissibility; for a determination made in Canada, it runs from the date the removal order is enforced. A foreign national inadmissible under section 40 cannot apply for permanent resident status during that period.
What must be examined
- The statement, document or information said to be false, misleading or withheld
- Whether the fact was material to administration of immigration law
- Forms, declarations, supporting records and prior applications
- Any procedural fairness letter and the response provided
- The reasoning connecting the alleged information to the finding
- Available appeal, reconsideration or judicial-review remedies
Appeal restrictions
Misrepresentation can also affect IAD jurisdiction. For sponsorship appeals, IRPA subsection 64(3) restricts an appeal based on misrepresentation unless the sponsored foreign national is the sponsor’s spouse, common-law partner or child.
Misrepresentation Guide
If IRCC or CBSA has raised concerns before making a final finding, see Procedural Fairness Letter for Misrepresentation: How to Respond.
Responding to a Misrepresentation Decision
A misrepresentation concern raised during CBSA enforcement may follow a different process from an IRCC application refusal. Review the section 44 report and any Immigration Division hearing notice before choosing a response.
The available remedy depends on where and how the finding was made, the person's immigration status and any statutory appeal restrictions. A Reconsideration Request may be appropriate in limited circumstances, while Federal Court Judicial Review may need to be assessed within the applicable filing period. A reconsideration request does not preserve a Court deadline. Federal Court proceedings through Fourth Dimension Immigration are handled by FDI's in-house lawyer authorized to practise before the Court. Book a consultation promptly after a finding.
Immigration criteria, document requirements and public policies can change. Advice should be based on the rules and facts applicable when you apply.