I am referring to PR as the point in time when applicant attested to correctness of information and signed under penalty of perjury.
Innocent Misrepresentation: Married before initial landing but after getting the PR visa
- Thread starter Ahmed Khan 86
- Start date
That would be the date that the applicant signed the COPR stating he was single....
I have a client from work who was under misrepresentation of PR due to the fact that he did not declare his marriage. He tried to sponsor his wife and child but he did not declare them when he landed. IRCC sent him a investigation letter stating his PR is under misrepresentation. My client eventually was able to maintain his PR but he can never sponsor his wife and child.
So it's really unpredictable whether IRCC decides to go after someone for misrepresentation.
So it's really unpredictable whether IRCC decides to go after someone for misrepresentation.
Regulation 51 must be read with Sec.A40(1) of the IRPA, 2002 i.e. Misrepresentation.
Reference: http://laws-lois.justice.gc.ca/eng/acts/I-2.5/section-40.html
40(1) (a) .a foreign national or permanent resident..is inadmissible 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;
An applicant is duty-bound to disclose any material change in facts even if no question is asked. This is firmly entrenched in the regulations (specifically in Reg. 51 i.e. 'Duty to Disclose'). The courts have for long upheld this duty to disclose.
At the very minimum - leaving aside an applicant's inability to read the regulations/ or ignorance of the Law - s/he must inform the visa office of any important changes to her/his application such as marriage, divorce, etc. prior to landing as PR. The IRCC Web form has been clearly provided for this purpose.
Again, Regulation 51 is not an arbitrary regulation that is not consistent with IRPA. Nor is it discretionary nor just intended as guidance. It has been repeatedly applied together with Sec. A40(1) (and other sub-sections under the Act).
The obligation or the duty to disclose truthfully lies with the applicant. It does not lie with the processes followed by the officer whether it is an IRCC case officer or an officer at the POE.
An applicant is seeking a privilege. S/he is aware that there are material changes in her/his circumstances, and further, that these material changes are relevant to the visa decision. This again makes the applicant duty-bound to disclose these changes to IRCC/CBSA.
That's exactly why the IRPA considers the failure to answer truthfully as misrepresentation and withholding of information.
Yes, it continues to remain a misrepresentation finding.
Correct.
There are no discretionary powers available to IRCC by which IRCC can selectively issue PR visas to a select few spouses/children of PR sponsors that committed misrepresentation by failing to truthfully declare their marital status/or their failure to declare children.
Judicial appeals don't work in this case. It is virtually impossible for these applicants to prove that misrepresentation was not committed
I will address the duty to disclose matter here.
You can see the case of Canada v. Thiara, 2014 FC 220, where the facts of this case deal specifically with the issue you have presented. The defendant in this case has committed a serious criminal offense shortly after signing and submitting his citizenship application but was later granted citizenship in error. The minister, in seeking to revoke citizenship on misrepresentation grounds, has relied only on the applicant's failure to disclose pending charges at the time of the citizenship ceremony and that, because paragraph 22(1)(b) of the citizenship act prohibits persons currently charged with an indictable offense from undertaking the citizenship oath, the minister submits the applicant was under a duty to disclose this change in circumstances to IRCC and, failing to do so, would be considered concealment of material circumstances:
So the minister's claim here is essentially the same as yours, however, the case was actually decided in favor of the applicant. The main reason is that the minister failed to show that applicant knew that he was ineligible for citizenship i.e. that he was aware of paragraph 22(1)(b) or something similar to that effect. The mere existence of a prohibition along with concealment was insufficient to establish misrepresentation. This means that the applicant is not required to know the internals of any immigration process and it follows that applicants are indeed under no obligation to read and study Canada's immigration laws, regulations, enforcement manuals or case law for that matter in the process of their immigration case.
You can see the case of Canada v. Thiara, 2014 FC 220, where the facts of this case deal specifically with the issue you have presented. The defendant in this case has committed a serious criminal offense shortly after signing and submitting his citizenship application but was later granted citizenship in error. The minister, in seeking to revoke citizenship on misrepresentation grounds, has relied only on the applicant's failure to disclose pending charges at the time of the citizenship ceremony and that, because paragraph 22(1)(b) of the citizenship act prohibits persons currently charged with an indictable offense from undertaking the citizenship oath, the minister submits the applicant was under a duty to disclose this change in circumstances to IRCC and, failing to do so, would be considered concealment of material circumstances:
So the minister's claim here is essentially the same as yours, however, the case was actually decided in favor of the applicant. The main reason is that the minister failed to show that applicant knew that he was ineligible for citizenship i.e. that he was aware of paragraph 22(1)(b) or something similar to that effect. The mere existence of a prohibition along with concealment was insufficient to establish misrepresentation. This means that the applicant is not required to know the internals of any immigration process and it follows that applicants are indeed under no obligation to read and study Canada's immigration laws, regulations, enforcement manuals or case law for that matter in the process of their immigration case.
I never said regulation 51 is inconsistent with the IRPA. It is discretionary in the sense that all regulations are in the discretion of the immigration minister who can change them anytime without approval from parliament. They are changed frequently (almost every month). Also, regulations cannot be mentioned themselves as a reason to reject or deny an application only the relevant section of the IRPA can be referenced, and similarly in court cases the minister cannot cite his own regulations in a given case.
It's true that, if facts come to light before rendering a decision, IRCC cannot selectively approve or deny a petition. However, given a case where a decision has already been made and the immigration benefit has already been exercised it remains within IRCC whether to revoke, deport or declare someone or their family inadmissible. Generally the misrepresentation will be weighed against the applicant and not every case will merit further action to be taken as set by given priorities.
Judicial appeals may render a positive decision in such cases as in the case cited above. They don't prove someone did not commit misrepresentation or prove it didn't happen, they only decide the case based on the presented evidence which may not always be sufficient.
Not sure what the arguments on this thread are about now.
Are you saying:
1. That the OP did NOT commit misrepresentation by landing as single when he was already married?
2. That the OP's spouse has a chance to be sponsored under the Family Class even though the OP has committed misrepresentation?
3. That IRCC and/or a judicial review would allow the OP's spouse to be eligible for sponsorship under the Family Class by virtue of 'discretionary powers'?
4. That the OP was not aware that he was bound by the duty of disclosure to disclose the change in material facts before/at the time of landing?
5. That the OP was not morally and conscientiously obliged to make these disclosures to either IRCC/CBSA?
6. That the OP was not aware at any stage of his PR processing that he was required to inform IRCC if he married anytime before he landed as an immigrant? This includes the IRCC web form, passport request letter, CoPR, etc even if one leaves aside the weak argument about ignorance of the laws
https://www.canlii.org/en/ca/irb/doc/2018/2018canlii60492/2018canlii60492.html
And yet in this case, which is about declaring marital status, the appellant lost their appeal, despite the appellant confessed ignorance of the law.
And yet in this case, which is about declaring marital status, the appellant lost their appeal, despite the appellant confessed ignorance of the law.
It would help to read about the Exclusion from Membership in the Family Class.... or Family Class: Excluded Relationships.... i.e. R117 (9)(d), R117 (10) and R117 (11) of the IRPA which directly concern the OP's situation.
Under the IRPA, all family members of an applicant must be examined, whether they are accompanying or not. Paragraph 117(9)(d) is a necessary component to prevent fraudulent abuse.
Introduced in 2002, Regulation 117(9)(d) was intended to take on fraud and misrepresentation based on the presumption that non-disclosure is motivated by the deliberate intention to deceive. This provision imposes a permanent, lifelong ban on Family Class sponsorship of family members, including spouses/common law partners/undeclared children who were not examined at the time of the sponsor’s immigration.
Unfortunately, whether by ignorance or by deliberate intention, the OP has committed misrepresentation due to which he can never sponsor his wife. She is excluded from the family class
Under the IRPA, all family members of an applicant must be examined, whether they are accompanying or not. Paragraph 117(9)(d) is a necessary component to prevent fraudulent abuse.
Introduced in 2002, Regulation 117(9)(d) was intended to take on fraud and misrepresentation based on the presumption that non-disclosure is motivated by the deliberate intention to deceive. This provision imposes a permanent, lifelong ban on Family Class sponsorship of family members, including spouses/common law partners/undeclared children who were not examined at the time of the sponsor’s immigration.
Unfortunately, whether by ignorance or by deliberate intention, the OP has committed misrepresentation due to which he can never sponsor his wife. She is excluded from the family class
@Bryanna
I didn't say the OP didn't commit misrepresentation, and I didn't say or imply he was not required to report change in circumstances. I am not making a judgment or taking a moral stance here I am merely explaining the options available. When the OP submits a question here seeking help my first instinct isn't going to be casting judgments straight away saying you're in big trouble and PR will be taken away from you ..etc, where in fact the OP will not be facing this outcome. The OP did something he now regrets, no doubt about that, but the penalty is not going to be revocation of PR. In order for that to happen, it needs to be shown the OP willfully decided to conceal this matter from IRCC and that he had bad intentions in doing so.. such as evading divorce proceedings, concealing medical inadmissibility ..etc. The OP's case is simply just about timing and lack of due care and so it may very well be ruled as innocent misrepresentation.
There are discretionary powers to IRCC. Section 25 of the IRPA provides a way for the applicant to apply directly to the Minister for discretionary relief on humanitarian and compassionate grounds. It specifically includes an application on behalf a foreign national resident abroad.
@Buletruck
This case is about challenging sponsorship ban, which was accepted by me and also mentioned earlier however the OP has better circumstances than the appellant and so it may lead to a different outcome. We don't know.
The ignorance of law as it pertains in the case is different from what I described, it concerns false statements put directly by the applicant in an immigration form and in this case it's not an excuse not knowing the legal definitions used in questions. In the case I have cited the misrepresentation concerned knowledge about concealing material circumstances and in this case ignorance of the law is an excuse.
I didn't say the OP didn't commit misrepresentation, and I didn't say or imply he was not required to report change in circumstances. I am not making a judgment or taking a moral stance here I am merely explaining the options available. When the OP submits a question here seeking help my first instinct isn't going to be casting judgments straight away saying you're in big trouble and PR will be taken away from you ..etc, where in fact the OP will not be facing this outcome. The OP did something he now regrets, no doubt about that, but the penalty is not going to be revocation of PR. In order for that to happen, it needs to be shown the OP willfully decided to conceal this matter from IRCC and that he had bad intentions in doing so.. such as evading divorce proceedings, concealing medical inadmissibility ..etc. The OP's case is simply just about timing and lack of due care and so it may very well be ruled as innocent misrepresentation.
There are discretionary powers to IRCC. Section 25 of the IRPA provides a way for the applicant to apply directly to the Minister for discretionary relief on humanitarian and compassionate grounds. It specifically includes an application on behalf a foreign national resident abroad.
@Buletruck
This case is about challenging sponsorship ban, which was accepted by me and also mentioned earlier however the OP has better circumstances than the appellant and so it may lead to a different outcome. We don't know.
The ignorance of law as it pertains in the case is different from what I described, it concerns false statements put directly by the applicant in an immigration form and in this case it's not an excuse not knowing the legal definitions used in questions. In the case I have cited the misrepresentation concerned knowledge about concealing material circumstances and in this case ignorance of the law is an excuse.
While I agree that no one here really can determine the outcome of these cases, one can provide a fairly accurate outcome based on the regulations and previous examples.
In the example I provided, despite poffering ignorance of the law, the ultimate dismissal of the appeal was based on section 117(9)(d) (not examined). I believe in most of these circumstances, you will find the decision based on the same thing, failure to submit for examination, hence exempting them from the family class.
https://www.canlii.org/en/ca/irb/doc/2018/2018canlii54715/2018canlii54715.html
In the example I provided, despite poffering ignorance of the law, the ultimate dismissal of the appeal was based on section 117(9)(d) (not examined). I believe in most of these circumstances, you will find the decision based on the same thing, failure to submit for examination, hence exempting them from the family class.
https://www.canlii.org/en/ca/irb/doc/2018/2018canlii54715/2018canlii54715.html
Like I said earlier, it's pretty unclear now what the arguments are all about on this thread. Also, you have been retracting your statements when new facts and the Law have been presented. Anyways.
I don't believe anyone here is taking a moral stance nor passing a judgement. We have only been stating the immigration rules and the possibilities based on similar cases.
The OP was given several opportunities during the course of his PR processing to inform IRCC about the change in his marital status. It is somewhat incredulous to believe that he simply "forgot". Anyways again.
BTW I have not posted anything about the possibility of his PR being revoked.
The facts remain unchanged:
The OP has misrepresented.
His wife is forever excluded from the Family Class.
In your last post, you stated that *it needs to be shown that the OP willfully decided to conceal the matter from IRCC*. Incorrect. No one can prove an *intention*. One can only prove the resulting action of that intention, in this case the action of committing a misrepresentation.
Innocence is not considered as a defense for misrepresentation i.e. unintentional failure to disclose the change in the material facts/circumstances is still considered as misrepresentation.
Case:
Mohammed v. Canada (Minister of Citizenship and Immigration), (T.D.) [1997] 3 F.C. 299
The Federal Court and Federal Court of Appeal has ruled:
There is an obligation to disclose any change in family composition from the date of filing the application for permanent residence up to and including the day of becoming a permanent resident
Further, there are several court rulings where the court has not considered these 'innocent' misrepresentations. If you re-read my previous post, I explained that R117 (9) (d) was introduced in 2002 on the premise that the non-disclosure was committed with the deliberate intention to deceive.
The Federal Courts have been dealing with similar cases of non-disclosure since very long. In fact, the current form of the relevant sections of the IRPA, specifically for non-disclosure of facts/ duty to disclose/ misrepresentation and withholding of facts.... owes its origin to what is known as the 'Brook Principles'. Do read it up when you get a chance. The case, too, makes for a very interesting read.
The Brook Principles are the basis for the current legislation, in particular, Section 40 (and its sub-sections). Basically, Immigration and the Federal Courts have plugged these loopholes decades ago. The OP's claim that he innocently forgot is unlikely to overturn the lifelong ban he faces to sponsor his wife.
Case:
Canada (Minister of Manpower and Immigration) v Brooks ([1974] SCR 850
Other cases that helped in the amendment of the immigration rules for duty to disclose and/or misrepresentation....and which cases specifically concern applicants that sought permanent residence:
Case:
Minister of Employment and Immigration v. Guidino, [1982] 2 F.C. 40) 27(1)e of the 76-77 Immigration Act
Case:
Abu Tayub Mohammed v Canada, (T.D.) [1997] 3 F.C. 299
Case:
Canada v. Haileyesus Geta Zewdie, (ID) [2006] I.D.D. No.22
Under the provisions of Section A25, the authority that can decide whether or not an H&C can be applied in such misrepresentation cases is IRCC. It is not the Minister who has the discretion.
In the cases where a spouse/child has been excluded from the Family Class under R117 (9)(d), R117 (10) and R117 (11) of the IRPA, the only option is to file an H&C application to explain the circumstances and the reasons for the non-disclosure. The visa officer will use his/her discretion to decide if the case allows for an exemption from the strict application of Regulation 117(9)(d).
These applications are very technical and must address the legal challenges at hand, again specifically R117 (9)(d), R117 (10) and R117 (11) of the IRPA.
Further, these applications demand considerable documentation and evidence to convince the visa officer that an exemption is the only solution to overturn the exclusion from the Family Class.
Generally speaking, is this H&C option advisable? No. Why? The sponsor in the Family Class application for permanent residence runs the huge risk of potentially opening themselves up to misrepresentation proceedings on the grounds that s/he had failed to disclose a change in the material facts and non-disclosure of these family members who are being sponsored.
To reiterate:
I am not saying/ have not said that the OP's PR will be revoked due to this misrepresentation. The possibility of this happening exists but the ultimate likelihood of his PR being revoked is slim.
IRCC information guides included with application kits and the visa issuance letters clearly state the need to declare all members of the applicant, including new family members. Also, R117(9)(d) stresses on the fact that an applicant must be honest and not attempt to circumvent immigration rules, especially family class sponsorship rules.
That's why, H&C might be an option only for exceptional cases. H&C is almost not likely to work in the case where a new immigrant simply 'forgot' to declare he now has a spouse + he signed the COPR stating he was single
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Alright folks, there's been a barrage of information, so I'd like to thank everyone that's replied. Here are some questions which I hope you all will be able to answer.
1) @vensak said it is possible to withdraw/renounce my PR, and reapply as a married person. Not to belittle him/her or his/her information, but I would like to know if that is a possibility, and whether my current situation or the withdrawal would affect my chances when I reapply. Would they find out if I misrepresented? Would those findings be held against me if I withdraw?
2) If Option 1 above is an option at all, what would be better for me
A) withdrawal
B) running the slim risk of declaring and losing my PR
3) @scylla, out of curiosity, why won't the 5 year ban apply in my case
4) @scylla & @Bryanna , why do you feel I run a slim risk of losing my PR and not a significant one
5) If my wife's visa is currently (dependant) on mine, I.e. the visa in her passport says that I am her sponsor in our current country of residence, WOULD this affect her chances in any way when she applies on her own for PR? Would they look into how and when we got married and could they find out I misrepresented if I didn't declare it at all. Could I lose my PR then?
6) If I declare my situation now by shooting them an e-mail, and I am found guilty of misrepresentation, would this affect my wife's chances when she applies for PR and has to declare me as her husband?
7) Lastly, when I applied for my SIN, I mentioned in the application that I was married, would that help to show that the misrepresentation was innocent?
@scylla ,@Bryanna , opinions?
Thanks again in advance. I really appreciate you people taking time out to help me.
Cheers.
1) @vensak said it is possible to withdraw/renounce my PR, and reapply as a married person. Not to belittle him/her or his/her information, but I would like to know if that is a possibility, and whether my current situation or the withdrawal would affect my chances when I reapply. Would they find out if I misrepresented? Would those findings be held against me if I withdraw?
2) If Option 1 above is an option at all, what would be better for me
A) withdrawal
B) running the slim risk of declaring and losing my PR
3) @scylla, out of curiosity, why won't the 5 year ban apply in my case
4) @scylla & @Bryanna , why do you feel I run a slim risk of losing my PR and not a significant one
5) If my wife's visa is currently (dependant) on mine, I.e. the visa in her passport says that I am her sponsor in our current country of residence, WOULD this affect her chances in any way when she applies on her own for PR? Would they look into how and when we got married and could they find out I misrepresented if I didn't declare it at all. Could I lose my PR then?
6) If I declare my situation now by shooting them an e-mail, and I am found guilty of misrepresentation, would this affect my wife's chances when she applies for PR and has to declare me as her husband?
7) Lastly, when I applied for my SIN, I mentioned in the application that I was married, would that help to show that the misrepresentation was innocent?
@scylla ,@Bryanna , opinions?
Thanks again in advance. I really appreciate you people taking time out to help me.
Cheers.
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