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

Federal Court Decision on the Innocent Error Exception to Misrepresentation

Federal Court Decision on the Innocent Error Exception to Misrepresentation

On July 7, 2021, the Honourable Mr. Justice Manson rendered a decision in the case of Angela Dos Santos Alves v The Minister of Citizenship and Immigration (2021 FC 596). The Applicant was represented at the hearing by Peter Salerno from Green and Spiegel LLP.

Facts

The Applicant is a citizen of Brazil. She had applied for a study permit to pursue studies at Centennial College in Toronto. In her study permit application, the Applicant had not explained the entirety of her immigration history in the United States. Specifically, she had responded “yes” to the application form’s question, “[h]ave you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?” and disclosed that she had applied for a student visa in the United States in 2018 and been denied. However, she did not explain that she had been also ordered to leave the U.S. in 2015.

During the processing of her application for a Canadian study permit, the Applicant received a procedural fairness letter alleging that she had provided incomplete disclosure of her U.S. immigration history. In her response to the fairness letter, the Applicant provided an explanation about the incident that had occurred in 2015 stating that, in her initial application, she hadn’t disclosed the 2015 event because she thought the 2018 refusal “…was the best answer because it was more recent…Since there was only a small space and 3 questions it wasn’t clear how best to answer.”

Subsequently, an officer refused the Applicant’s study permit application and found her inadmissible for misrepresentation. Misrepresentation carries serious consequences regarding someone’s ability to enter Canada. If a person is found inadmissible for misrepresentation, they are unable to enter Canada for a period of five years.

The Applicant challenged the officer’s decision and finding of misrepresentation at the Federal Court, arguing that it was not reasonable.

Ruling

Justice Manson explained that a finding of misrepresentation can be made when there is “clear and convincing evidence” that an applicant has withheld material facts and that such a finding can be made even when the misrepresentation was accidental.

At paragraph 16, Justice Manson also noted that the Federal Court has recognized an “innocent error” exception to misrepresentation, in narrow circumstances in which “…[a]n applicant can demonstrate that they honestly and reasonably believed that they were not withholding material information, where ‘the knowledge of which was beyond their control’…” Furthermore, the Court has also applied the innocent error exception in situations where the information alleged to have been misrepresented was accessible to the officer elsewhere in the evidentiary record and freely disclosed by the applicant if asked about it.

This is what occurred in the case at hand. The Applicant’s disclosure of her 2018 refusal prompted the officer to look into her U.S. immigration history, revealing the incident in 2015. Upon receiving the procedural fairness letter, the Applicant freely disclosed information about the 2015 incident.

Justice Manson found, at paragraphs 19 and 20 of the decision, that the officer had failed to consider the mitigating circumstances in this case (i.e., the initial response of “yes” regarding adverse immigration history and the Applicant’s subsequent candid response upon issuance of the procedural fairness letter). Therefore, he found that the decision lacked the degree of justification, transparency, and intelligibility required for a decision to be reasonable, as established by the Supreme Court of Canada in Canada v. Vavilov (2019 SCC 65).

Justice Manson, at paragraph 21, further noted that, for a finding of misrepresentation to be reasonable, the facts withheld must have been material to the application – meaning that they must have been sufficiently important to affect the process. It was unclear in the present case how the officer concluded that the misrepresentation was material since the Applicant had answered “yes” to the overarching question regarding adverse immigration history and disclosed her most recent refusal, prompting the appropriate inquiries to be made by the officer. Justice Manson therefore found that the evidence did not justify the officer’s finding that the misrepresentation was material.

Ultimately, Justice Manson found that the officer’s decision failed to meet the standard of reasonableness required by Vavilov and therefore ordered that the matter be sent back for reconsideration by a different officer.

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