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Green and Spiegel - An Immigration Law Firm
Aug 3, 2021

Federal Court Confirms Importance of the Materiality Assessment for Misrepresentation Findings

Federal Court Confirms Importance of the Materiality Assessment for Misrepresentation Findings

On June 9, 2021, the Honourable Justice Southcott rendered a decision in the case of Salim Muhammed Ali v Minister of Citizenship and Immigration, 2021 FC 579. Mr. Salim Muhammed Ali, the Applicant, was represented at the hearing by Peter Salerno from Green and Spiegel LLP.

Facts

The Applicant applied for a Canadian temporary work permit and disclosed his background in the United States, including his removal proceedings in the US. In his application, he responded “yes” to a question that asked: “Have you ever been refused a visa or permit, denied entry, or ordered to leave Canada or any other country or territory?” Below his response, he indicated that he was ordered to leave the US in 2011 and returned to Pakistan. He also responded “yes” to a question that asked: “Have you ever been arrested for, been charged with or convicted of any criminal offences in any country or territory?”

In October 2019, the Applicant received a procedural fairness letter, informing him of concerns that he did not truthfully answer all questions asked of him on his application. Specifically, the concern was that the Applicant did not declare all previous enforcement interactions and previous US refusals in his application.

The Applicant’s then counsel provided a letter in response to the procedural fairness letter, acknowledging that the Applicant had not identified the Applicant’s waiver refusals from the US. In the response, it was explained that the Applicant was under the impression that the waivers were not considered to be “visa or permits” as per the wording on the application form, and therefore did not include them in his answer. The Applicant also provided a written response, explaining how he did not purposefully hide or misrepresent information on his application.

The Visa Officer at the Canadian Embassy in Mexico City refused the Applicant’s application for a work permit in Canada, finding the Applicant made a material misrepresentation in his application, and determined he was inadmissible to Canada for five years.

Ruling

Justice Southcott ultimately found the Visa Officer’s decision to be wanting in intelligibility, and unreasonable in its assessment of materiality pursuant to section 40(1)(a) of the IRPA.

The key in this case was that the Applicant had not fully omitted his adverse US immigration history. Rather, as stated at paragraph 24 of the decision:

… the Officer was aware of the reasons for the US waiver refusals (i.e. his misrepresentation to US immigration officials and resulting deportation from the US) through the Applicant’s disclosure in his original June 2018 application. Therefore, in my view, the Officer was required to provide some explanation of the conclusion that the omission of those refusals would have resulted in particular procedures not being followed in the processing of the application.

Justice Southcott further stated at paragraph 20:

Perhaps there are steps or procedures that would have been followed if the visa officer had known about the visa waiver refusals in addition to the other information disclosed by the Applicant. However, the Decision provides no explanation of what those procedures would be or any analysis of that question.

This Federal Court confirms that misrepresentation findings cannot be made lightly and without an assessment as to whether the omitted information is material. If you or someone you know has been alleged to have committed or found to have misrepresented, you may wish to schedule a consultation at Green and Spiegel LLP to determine how best to respond.

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