Immigration matters

Sukhram Ramkissoon

 The high cost of misrepresentation

A regular reader of this column recently asked whether

he can sponsor his spouse who had lied in her application for a Temporary Resident Permit to Canada about two years ago.

This question deals with misrepresentation – a subject about which I have written in several previous columns.  However, to address this specific question, I will point out the consequences of  lying on an application form.

Let’s look at a recent case relevant to this question which was decided in the Immigration Appeal Division (IAD).

In June 2016, James had applied to sponsor his wife, Monica (not their real names) for permanent residence under the Family Class Sponsorship.. The sponsorship application was refused on March 2017 on two bases -first, the marriage was found to be not genuine, and secondly, Monica was also inadmissible for five years

from November 2015 for misrepresentation with respect

to an application for a temporary resident visa (TRP).

The TRP refusal letter stated as follows:

“A period of five years has not elapsed since your previous application for a temporary resident application was refused. Accordingly, you continue to be inadmissible to Canada for a period of five years from November 2015. You may not make an application until the five-year period from the date of the refusal letter in respect of your previous application has elapsed. ”

James appealed the decision to the IAD and the matter was heard in November 2018.

The  major issue before the IAD  was whether it  had  jurisdiction to hear an appeal on the merits of an application for permanent residence on behalf of a foreign national, who at the time the application was made, was inadmissible to Canada for misrepresentation and was barred from applying for permanent resident status for a period of five years.

After considering written submissions provided by both parties, the IAD dismissed the appeal for want of jurisdiction. The IAD has no jurisdiction to entertain the appeal of a refused family class permanent residence application determination on behalf of a foreign national who is inadmissible to Canada for misrepresentation under the Immigration Act, where the inadmissibility finding bar precedes the filing of the application.

Both parties took the position that as the immigration officer made a decision on the application for permanent residence, there is a right of appeal in law and humanitarian and compassionate relief, notwithstanding the misrepresentation.

The parties also submitted that as a decision has been made by the immigration officer on the merits of the sponsorship application, the law applies to give the appellant a right of appeal to the IAD.

In its reasons, the panel noted that in the refusal letter, the immigration officer makes no reference to OB 595, a document that instructs visa posts that where an application for permanent residence is caught by the five-year ineligibility period that the application “must be returned with the fees as it will not be examined.”

It also noted that 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 of inadmissibility) or, in the case of a determination in Canada, the date the removal order is enforced;

The panel ruled that even though both parties take the position that there is a right of appeal to the IAD, in the circumstances of this appeal, the IAD, “acting judicially and not as a rubber stamp, must be satisfied on the facts and the law that it should make the requested judgment.”

In light of IRPA and OB 595, it  found that the application for permanent residence in this case was improperly made since the admissibility filing bar of the applicant was current and in effect at the time the application was made.

The panel also ruled that there are no Federal Court decisions that interpret the impact on inadmissibly for five years of the right of appeal to the IAD.

It further stated that, moreover, the visa officer who denied the applicant’s permanent resident application sent a letter to Monica explaining that she was inadmissible to Canada as a result of misrepresentation and that prohibited him from considering his application for a period of five years as of March 2015. The panel also noted that the visa officer did not make a ruling on the sponsorship application filed by James. Had the visa officer made a decision on the merits of the sponsorship application, then the panel may have had jurisdiction to consider the appeal and as such may have been able to utilize its discretionary or special relief.

The panel ruled that James has not shown that he has a right of appeal, and thus the IAD is without jurisdiction to entertain the appeal in this case. The appeal was dismissed in its entirety.

So, dear reader, this  case clearly  shows that if  a person is inadmissible to Canada for five years,  that person cannot file an application for permanent residence during this period.

Lying or misrepresentation on an application can be a costly matter.

SUKHRAM RAMKISSOON is a member of ICCRC and specializes in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.