Under IRPA section 40, a permanent resident or foreign national may be 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 immigration law.
Five-year consequence
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 should be reviewed
- The exact statement, omission or document alleged to be misleading
- Whether the information was material
- Forms, declarations, prior applications and supporting documents
- Information supplied by representatives or third parties
- Any procedural fairness letter and response
- The decision-maker’s reasoning and available remedy
Enforcement consequences
A misrepresentation finding can lead to refusal and, depending on the person’s circumstances, inadmissibility and removal proceedings. It can also restrict certain IAD sponsorship appeal rights. The record should be reviewed before deciding whether reconsideration, an available appeal or Federal Court judicial review is appropriate.
What does “material” misrepresentation mean?
The allegation is not limited to information that actually changed the result. IRPA section 40 addresses a material fact that induces or could induce an error in the administration of the Act. The relationship between the alleged statement or omission and the immigration decision therefore requires careful analysis.
Direct and indirect misrepresentation
An allegation can concern information supplied directly by the applicant or information provided through another person. Cases involving representatives, employers, family members or third-party documents require a close review of what was submitted, what the applicant knew, and the legal significance of the alleged inaccuracy.
Procedural fairness before a finding
Where an officer raises a concern before making a decision, the response should address the exact allegation rather than simply repeat the original application. The underlying forms, documentary record, chronology and any innocent explanation should be supported with evidence where available. See Procedural Fairness Letters.
Misrepresentation in CBSA enforcement
If CBSA alleges misrepresentation, review whether a section 44 report has been prepared and whether the matter is proceeding to an admissibility hearing. The available response and appeal rights depend on the decision and the person's immigration status.
For a person in Canada, an allegation may also arise through CBSA enforcement and inadmissibility proceedings. A section 44 report, admissibility process and resulting removal order can have consequences different from a simple visa refusal.
Can a misrepresentation finding be appealed?
The answer depends on the decision and the person’s status. Some matters may involve an IAD appeal, while statutory restrictions can remove appeal rights in particular circumstances. Other cases may require consideration of reconsideration or Federal Court judicial review through FDI’s in-house lawyer authorized to practise before the Court.
What to preserve after a finding
- The refusal or inadmissibility decision and reasons
- The procedural fairness letter and complete response
- The application forms and all supporting documents
- Prior applications containing the information in question
- Representative or third-party communications where relevant
- Proof of when the decision was received
This page provides general information only and is not legal advice. Misrepresentation findings are fact-specific and can carry significant immigration consequences.
Before and After a Misrepresentation Finding
If IRCC has raised the allegation but has not yet made a final decision, review Procedural Fairness Letters. If a finding has already been made in an application, review Misrepresentation Findings & Remedies. For enforcement consequences, see Removal Orders & Deportation. Book a consultation for case-specific assessment.
Immigration criteria, document requirements and public policies can change. Advice should be based on the rules and facts applicable when you apply.