In Immigration Law, the finding of misrepresentation is a serious matter with significant consequences. For immigrants, the law is (unexpectedly) quite broad and raises many issues. In my experience, while there are people who intentionally withheld material facts, there are others who genuinely believed that it was unnecessary to provide such information.
I am constantly being asked by clients regarding their criminal charges, especially when the charges were ultimately withdrawn. Do they have to disclose the information to the IRCC?
There is interesting case law on misrepresentation and withdrawn charges – Patel v. Canada (Minister of Citizenship and Immigration), [2017] F.C.J. No. 388
Mr. Patel was a 26-year-old citizen of India. In Canada, he was charged with operating a motor vehicle while impaired. The charges were ultimately withdrawn. Mr. Patel submitted a TRV application but did not declare the arrest and withdrawn charges. The visa officer determined that Mr. Patel misrepresented and was inadmissible.
At the Federal Court, the determinative issue was the materiality of misrepresentation. Mr. Patel argued that the misrepresentation was not material because he had no criminal record or conviction inside Canada. However, the Federal Court disagreed.
The Federal Court acknowledged that the jurisprudence indications that a visa officer can still assess admissibility based upon the charges even if there is no eventual conviction [at para 81]. Specifically, withdrawn charges cannot be used against an applicant if the inadmissibility is based on criminality, but can be used if the inadmissibility is based on misrepresentation [at para 82]. Further, the Federal Court wrote that even if the Applicant believed that the lack of a conviction rendered the previous refusal irrelevant, this does not make his misrepresentation innocent [at para 86].
As you can see, it is important to recognize the broad scope of obligation to provide truthful and complete information. The innocent misrepresentation exception is narrow and only applied in exceptional circumstances.
