Canadian federal court rules on avoiding a misrepresentation finding by disclosing relevant information in other part of application

In 2020, Mohammed Shareef, a citizen of India, filed for a work permit application seeking to accompany his wife to Canada for the duration of her studies. This was Shareef’s second work permit application. His previous application was filed in 2019 but refused based on concerns about the authenticity of the spousal relationship.

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Shareef stated that he answered “yes” to the question about prior visa refusals. He also claimed that his application stated that there were clarifications of his rejections of previous USA and Canadian visas on his prior application in 2019. In addition, Shareef’s application cover letter explains that he had previously applied for a Canadian visitor visa and USA visa extension and that these were refused.

The Immigration, Refugees and Citizenship Canada (IRCC) officer assigned to his case sent Shareef a procedural fairness letter expressing the concern that he did not answer all questions truthfully. More specifically, he did not disclosure his “previous US applications and refusals”. The officer claimed that the Shareef submitted a form that checked “no” in response the previous visa refusals questions.

Shareef responded explaining that he was unaware that he had to repeat information disclosed on a prior application. The officer determined that his response did not adequately address why the disclosure was not made in the current application and found him inadmissible to Canada due to misrepresentation.

Shareef applied for judicial review of the decision.

The court discussed how a misrepresentation finding carries serious consequences, namely a five-year ban from Canada. Therefore, it was incumbent that the Officer grapple properly with the contradictory applications on the record and provide Shareef with an opportunity to explain himself before determining that he had misrepresented his visa refusal history and was inadmissible to Canada.

Further, the court stated that the Officer should have considered the cover letter that was submitted along with the application. In particular, “the Officer should have considered whether the disclosure of some visa refusals in that letter was enough to conclude that the Applicant did not intend to mislead the immigration authorities about his visa refusal history”.

The court ruled that the officer’s decision was both unreasonable and procedurally unfair. An officer must consider the totality of a visa application in determining whether there has been misrepresentation. In particular, where an applicant discloses the correct information in another part of their application form, this may militate against a misrepresentation finding.

The implications of Shareef’s case

The Federal court has reaffirmed that if an applicant incorrectly fills out an application form, but correctly discloses the relevant information in another part of their application, then this can mitigate against a misrepresentation finding.

The case also reiterates that a finding of misrepresentation should not be given casually. Misrepresentation has severe consequences. Therefore, visa officers must seriously consider all evidence in the application and must give the applicant a proper chance to explain themselves before making such a finding.

If you are planning on submitting a visa application, it is imperative that you are as honest, clear, and straightforward as possible. If you think there might be a chance that your application is unclear, confusing, or misleading, you should provide supplemental information that explains and clarifies the ambiguities.

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