By Catherine Sas, Q.C.
Special to The Post

Of all the various statutory weaponry in an immigration officer’s arsenal, there is perhaps none so lethal in the Immigration and Refugee Protection Act (IRPA) a S. 40, the statutory provision which defines misrepresentation. A misrepresentation finding has dire consequences - generally a five-year ban on making any future immigration application, but in some cases, a permanent bar to ever being able to come to Canada. The dire consequences of a misrepresentation finding are such that this topic is one of the most recurring that we have raised in our blogs. It bears repeating that one should strive to avoid misrepresentation in the Canadian immigration process at all costs. Here are some tips and considerations in order to avoid an S. 40 determination.

To “Declare or not to Declare”, that is the Question!

There is actually no question for consideration at all. Always declare everything! If a government check such as a criminal clearance or marital history doesn’t include a previous conviction or marriage, you still have to disclose it! Common examples of things that people fail to disclose pertain to previous immigration refusals whether in Canada or any other country; work or travel history; criminality; spousal relationships or children born out of wedlock. If you have any question about whether a fact in your life or personal history is relevant, it is far better to provide all the details with an explanation and let a visa officer decide how to proceed. A finding of misrepresentation means that a visa officer thinks that you were dishonest either by providing untruthful information or withholding pertinent information. A misrepresentation determination is essentially a finding that you can’t be trusted and once such a finding is on your immigration history, it is very difficult to overcome in the future.

The failure of the “immigration professional” defense

It is simply not a valid defense to claim your immigration representative is to blame for your submission. You cannot use your immigration professional - either a lawyer or a consultant - as an excuse. The same applies to an unpaid representative such as a family member or friend. The responsibility for accuracy in your immigration application rests with you. While there are some rare instances where immigration professionals have been found responsible for inaccuracies in an immigration application, generally the Federal Court is not on your side when it comes to providing relief for misrepresentation. And never ever sign blank immigration forms to have your representative complete for you!

Are you able to communicate fluently in English or French?

Immigration, Refugees and Citizenship Canada (IRCC) has offices around the world. This speaks to the fact that prospective immigrants to Canada - whether temporary or permanent - come from a myriad of countries speaking many different languages other than either English or French, Canada’s two official languages. If you cannot communicate fluently in either English or French, then use the services of a certified interpreter and translator. I often have clients who want to save on the expense of having a translator or interpreter assist with their application. I use my own personal experience as an example of why this is not a good idea. I have studied French since I was 5 years old and lived in the province of Quebec for nearly three years where I worked daily speaking French. I can communicate conversationally in French. However, I can’t tell you what a deportation order is nor can I tell you what a work or study permit is in French. And I certainly can’t tell you the French word for misrepresentation. The immigration application process is a legal process and at the conclusion of every application you sign a declaration that the information that has been provided is accurate and truthful. You need to fully understand all the information that is being included in your application and you cannot rely on others to provide information on your behalf in a language that you don’t understand. As in most things in life, you get what you pay for. Engage the services of a qualified translator or interpreter to assist you with the immigration process.

An untruth lives forever

A misrepresentation never goes away. It can lurk in your history for years and years and be transferred from one application process to another. A colleague of mine recently shared a story of a person who had immigrated to Canada and ultimately became a Canadian citizen and lived in Canada for over 20 years. With the enhanced sharing of information between Canada and the US border officials, on a subsequent entry to Canada, the individual was found to have an extensive criminal record in the US which he never disclosed at the time he applied to come to Canada. He was ultimately stripped of his Canadian citizenship and permanent resident status and deported back to the US. Your past untruthfulness can catch up with you!

As an immigration lawyer, one of the most distressing and heartbreaking areas of practice is dealing with allegations of misrepresentation. Both visa officers and Federal Court judges deal harshly with persons who have either provided false information or withheld relevant information. There is absolutely no difference in the harshness of the penalty whether it was intentional or inadvertent. Challenging such findings are both difficult and expensive. S. 40 is ruthless in the consequences it bestows. You are well advised to ensure that all information you provide in any immigration application is both truthful and accurate.

Please refer to our other blogs on the topic of Misrepresentation which provide a good reminder of the harsh effects of a S. 40 determination and tips on how to avoid one:

• Why Honesty Really Matters in the Immigration process - March 11, 2013

• Express Entry and the Perils of Misrepresentation - March 26, 2015

• “Really you signed blank forms?” - Best practices for immigration clients - October 4, 2016

• Canada’s Immigration Program - Honesty is the best policy - June 25, 2018

Catherine Sas, Q.C. has over 30 years of legal experience. She provides a full range of immigration services and is a leading immigration practitioner (Lexpert, Who’s Who Legal, Best Lawyers in Canada). Go to canadian-visa-lawyer.com or email catherine@sasanding.com.