Use of representatives: Misrepresentation

Immigration

A127 (a) and A127(b) of the Immigration and Refugee Protection Act (IRPA) concerning misrepresentation state as follows:

No person shall knowingly:

• directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
• communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada.

Examples of direct and indirect misrepresentation that might induce an error in the administration of IRPA are provided in ENF 2/OP 18, Section 10, and include misrepresentations made by authorized representatives.

Representatives who are members in good standing with their respective regulatory bodies and who have been found to have misrepresented a client or provided false information should also be reported to the local manager to determine if further investigation is warranted.

A permanent resident or a foreign national is inadmissible to Canada for misrepresentation pursuant to A40(1)(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.”

If the applicant fails to identify that their representative is not authorized, officers should be guided by the comments in Section 10 of ENF 2/OP 18 concerning the high level of fairness and proof required in these circumstances, before commencing immigration enforcement proceedings against the client for misrepresentation pursuant to A40. An individual should always be given the opportunity to respond to concerns about a potential misrepresentation. It is also necessary to gauge whether, on a balance of probabilities, the applicant should have known that their representative was not authorized as defined in the Regulations. The standard of proof for inadmissibility based on alleged misrepresentation is based on a balance of probabilities and is a higher standard than that of reasonable grounds to believe.

With the standard of fairness to be applied in the case of this provision, an individual should always be given the opportunity to respond to concerns about a possible misrepresentation. The consequence to the applicant for a finding of misrepresentation is a period of inadmissibility of five years.

In addition to being inadmissible to Canada for a five-year period, the applicant may also be charged under the offences section of IRPA [A126, A127 and A128].

Citizenship

The Strengthening Canadian Citizenship Act (SCCA), pursuant to paragraphs 29.2(2) (a), (b) or (c), continues to create offences related to misrepresentation, although the grounds have been substantially expanded. The SCCA also introduces a new offence, under subsection 29.2(1), for every person who counsels, induces, aids or abets (or attempts to do so) any person to directly or indirectly misrepresent, or withhold material circumstances relating to a relevant matter which induces or could induce an error in the administration of the Act.

The purpose of these expanded offence provisions, as with the expanded grounds for prohibitions found in section 22 of the Citizenship Act, and in particular those relating to misrepresentation, is to ensure that applicants provide complete, honest and truthful information in every manner when applying for Canadian citizenship. The expanded offence provisions, and the increase in the possible penalties for committing such offences, illustrates that any misrepresentation is taken very seriously. Please see Citizenship: Misrepresentation and Referrals to Case Management Branch for Citizenship Act offence investigation for more information. Representatives who are members in good standing with their respective governing bodies and who have been found to have misrepresented a client or provided false information should also be reported to the local office supervisor to consider if a referral to Case Management Branch for additional action is warranted.

A22(1)(e.1) of the Citizenship Act prohibits a person from being granted citizenship or taking the oath of citizenship if the person directly or indirectly misrepresents or withholds material circumstances relating to a relevant matter, which induces or could induce an error in the administration of the Act. Applicants who are found to have committed misrepresentation are prohibited from being granted citizenship during the five year period following a finding of misrepresentation. This extends to cases where the act of misrepresentation was not committed by the applicant directly, but also by a representative acting on the applicant’s behalf, with or without the applicant’s knowledge or consent).

Representatives who are parties to acts of misrepresentation are subject to discipline from their governing bodies. Furthermore, every person commits an offence who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material circumstances relating to a relevant matter, which induces or could induce an error in the administration of the Act. The punishment for a person found guilty of this offence is a fine and/or imprisonment under the terms of section 29.2(3) of the Citizenship Act.

Counselling misrepresentation and offences

A126 and A127 make reference to counselling offences and include scenarios in which an applicant is indirectly misrepresented.

A126 states:

• Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.

The same consideration outlined above, including the high level of fairness, should be applied to counselling misrepresentation.

If an officer suspects that a representative has committed a counselling offence, they must follow the appropriate investigation process. If a representative is found guilty of committing a counselling offence, they may be subject to the same penalties as the applicant who commits misrepresentation in that they may be charged with an offence under IRPA. However, in addition to being charged with an offence under A126, A127 and A128, the applicant may also be inadmissible to Canada for a five-year period pursuant to A40.

As noted above, similar misrepresentation offence provisions are included in the Citizenship Act, as well as counselling misrepresentation.