Misrepresentation Leading to 5 Year Ban
MINOR OVERSIGHTS CAN LEAD TO FINDINGS OF MISREPRESENTATION WHICH CAN LEAD TO A FIVE (5) YEAR BAN
Immigration authorities has become increasingly aggressive, to the point that they try to make a minor oversight, a reason to find applicants inadmissible for 5 years. Our office is seeing this happen more often to persons seeking entry into Canada.
The scenario which commonly leads to this finding, occurs when these applicants have previously applied to go to a Western Country (usually the United States) for a temporary purpose (visit, study, work), but their application was rejected. Sometime later they apply for a visa to Canada. However, the officer advises that not only is he looking to reject their visa application, but he also states that he has found the applicants to have engaged in misrepresentation in their application for Temporary Resident Visa and believes that they may be inadmissible to come to Canada.
The letter further explains that the misrepresentation finding renders the applicants inadmissible for a period of five (5) years. Meaning these applicants are banned for 5 years from entering Canada.
In many cases, this is the result of a simple oversight or misunderstanding. In most cases, for example, for a visitor application, Form IMM 5257, has a question in the Background:
Section, 2(b) – Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country.
Many clients misread this question. Let’s be clear, if you have a previous refusal to the U.S., Australia, U.K. or “any other country,” you must answer YES. Not doing so, or checking the wrong box, can lead to a finding of misrepresentation and a ban of 5 years.
The law is set out in subsection 40 (1) (a) of the Immigration and Refugee Protection Act, which reads;
40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a) 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 this Act;
(2) The following provisions govern subsection (1):
(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced;
So what can you do if you have received such a ban? Obviously, it is better that you seek legal help when you receive a letter from the visa post asking you to explain why you have not disclosed the previous refusal to prevent the officer finding you inadmissible, especially if you mistakenly checked off the wrong box. But what if it’s too late and a finding of inadmissibility is already made, and the ban is imposed on you. You have the right to seek a judicial review of the officer’s finding in Federal Court.