Learning moments – Misrepresentation under A40 – once again

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Hello, fellow practitioners! Today’s question deals with past findings of misrepresentation under s.40 of IRPA.

We filed an economic class (AINP) application for a client, Mrs. A. While the application was ongoing, she got married and added her spouse, Mr. A.

Mr A was a dependent on a previous Family Class permanent residence file. The principal applicant on that Family Class Application received a 5 year misrepresentation bar for declaring Mr. A a dependent (which he was not). A DNA test revealed that the Mr. A was not the biological son of the PA on that application.

How will Mr A’s misrepresentation affect Mrs. A on her economic class application?

We have encountered many clients lately that are adding a spouse and then for some reason or another seeing misrepresentation for the spouse they have added on to the file. Any insight or direction you

can provide will be helpful.

There are a few important details missing from the background of the question which prevent me from answering definitively, but there is a lot of fodder for discussion here.

Let us remember that the relevant portions of s.40 of IRPA state as follows:

40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

· (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;

(2) The following provisions govern subsection (1):

· (a) 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 outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced;

First of all, it is not clearly mentioned whether Mr. A himself was ever found to have made a misrepresentation and whether the 5 year bar that resulted to the principal applicant under A40(2) was ever applied to him. He may have been under the age of 18 years at that time, and the officer may not have actually found him to have misrepresented anything. This point needs to be clarified before advising the client. If no formal finding of misrepresentation was made against Mr. A at that time, then it could be that he was never inadmissible to begin with.

The second issue is that we don’t know if the 5 year bar referred to in A40(2) has passed. The inadmissibility lasts only for 5 years and after that point it automatically expires. If more than 5 years has already passed, then Mr. A is no longer inadmissible to Canada even if he had been found to have misrepresented on the former application.

In either of the above scenarios, the problems of the previous sponsorship application are unlikely to affect your AINP client or her spouse. The only conceivable effect I could imagine is that the cloud of the previous dishonesty might engender above average scrutiny of the details of the new application. That said, if they have been straightforward in this application, then they have no reason to fear additional scrutiny.

You could however conceivably have a problem IF there was a formal finding of misrepresentation made against Mr. A in the original sponsorship application AND if that occurred less than 5 years ago. In such a case, Mr. A remains inadmissible until the 5 year period has expired.

If Mr. A is indeed inadmissible, then it makes his wife Mrs. A also inadmissible by virtue of A42(1)(a) which states as follows:

42 (1) A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if

· (a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible;

In such a case where Mrs. A has been rendered inadmissible through her spouse, your only alternatives would be to request humanitarian and compassionate discretion to overcome the effects of A40, or perhaps to request a Temporary Resident Permit under A24 to allow her the right to remain in Canada until the 5 year bar has elapsed and the inadmissibility expires.