Misrepresentation — the objective standard
Overview
Section 40 of the Immigration and Refugee Protection Act (IRPA) renders a permanent resident or foreign national inadmissible for misrepresentation — 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. Misrepresentation is assessed objectively: the person's intent or knowledge of the inaccuracy is not determinative. A finding of misrepresentation results in a 5-year bar on making new applications for status or entry.
Misrepresentation is a significant inadmissibility ground that captures a wide range of conduct — from deliberate fraud to inadvertent omissions. The objective standard means that applicants are held responsible for ensuring the accuracy and completeness of their applications, even if they were not personally aware of an error.
A limited defence exists for "innocent misrepresentation" — where the person establishes that they acted in good faith, on the basis of reasonably credible information, and that they did not know and could not reasonably have known the misrepresentation occurred.
Legal basis
- IRPA s 40(1)(a) — 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
- IRPA s 40(1)(b) — being sponsored by a person who is themselves subject to a misrepresentation finding, in certain circumstances
- IRPA s 40(2) — the 5-year prohibition: a person found inadmissible under s 40 is prohibited from applying for permanent residence, temporary resident status, or a work or study permit for 5 years following the finding
- IRPA s 40(3) — the innocent misrepresentation defence
How it works
What constitutes misrepresentation?
Misrepresentation under s 40 can take many forms:
- Providing false information in an application (e.g., incorrect employment history, fabricated qualifications)
- Failing to disclose material information (e.g., undisclosed criminal convictions, undisclosed dependent children, undisclosed previous immigration applications)
- Using a ghost consultant or third party who submits false information on the applicant's behalf
- Using fraudulent documents (false employment letters, transcripts, etc.)
The "material" requirement
The misrepresentation must be of a material fact — that is, a fact that could have affected the outcome of the application or induced an error in administration. If the information was not relevant to any issue in the application, it will not support a finding under s 40.
The objective standard — no intent required
The Federal Court has consistently held that s 40 applies on an objective basis. The officer does not need to establish that the person intended to deceive — only that a misrepresentation occurred and that the person either made it or was responsible for it. This is harsh in cases where a consultant or translator made an error without the applicant's knowledge, unless the innocent misrepresentation defence applies.
Innocent misrepresentation defence
The s 40(3) defence requires the person to establish:
- They acted in good faith on the basis of reasonably credible information
- They did not know of the misrepresentation
- They could not reasonably have known of the misrepresentation
This is a narrow defence. Courts have held that applicants have a responsibility to review the accuracy of their applications before submitting them.
The 5-year bar
A finding of inadmissibility under s 40 results in a 5-year prohibition on applying for status in Canada. The 5-year period starts from the date of the removal order or the refusal decision. During this period, the person cannot apply for a permanent resident visa, temporary resident visa, work permit, or study permit (subject to limited TRP exceptions).