What’s an innocent mistake in immigration applications?
In June 2017 I wrote an article for Canadian Immigrant titled “Don’t Misrepresent: Honesty is the Best Policy When Filling out Applications.” The piece provided an overview of how committing misrepresentation in an immigration application can result in a five-year bar on entering Canada.
In discussing what constitutes misrepresentation, I wrote that “while there is an “innocent misrepresentation” exception, it applies only to truly extraordinary circumstances in which a prospective immigrant honestly and reasonably believes that they were not misrepresenting a material fact and that the knowledge of it was beyond their control. An example would be where someone does not declare a child that they did not know about.”
Since publishing this article I have received several e-mails asking for a more detailed review of what the “innocent mistake” defence to misrepresentation is.
The law on innocent misrepresentations
Canadian immigration law continues to take a very expansive approach to what constitutes misrepresentation. Any misstatement or omission that is material, and that either did or could have caused an error in an immigration officer’s assessment of an application, can result in a five year bar on entering Canada. Canadian immigration legislation does not impose a subjective intent requirement on misrepresentation, meaning that whether someone intended to misrepresent is generally irrelevant. The exception to this has been described as the “innocent mistake” defense to misrepresentation.
The innocent mistake defense to misrepresentation applies in very limited circumstances, and includes misstatements or omissions where, to quote the Federal Court of Canada in Suri v. Canada (Citizenship and Immigration), “knowledge of the misrepresentation is beyond the applicant’s control.” This is not as broad as it sounds.
Examples of what is not an innocent mistake
Perhaps the most commonly asked question about the innocent mistake defense to misrepresentation is whether it encompasses the lie of an immigration representative, be it a consultant or lawyer. The short answer is that it does not.
Applicants are responsible for verifying the authenticity of documents that they provide. In Khedri v. Canada (Citizenship and Immigration), for example, a study permit applicant included a bank statement from the Société tunisienne de Banque Bank (STD Bank) that his father had provided him. It turned out that his father had produced a fake bank statement. Justice Noël found that this was not an example of an innocent misrepresentation, writing that the onus was on the student to verify the accuracy of the bank statement, and he had made no effort to confirm whether it was real.
Conversely, and perhaps due to the fact that any applicant can hire a representative, misunderstanding a question on a visa form is not an example of an innocent misrepresentation. This issue most frequently arises when applicants answer questions in visa forms regarding “common-law relationship,” previous “detentions,” and being party to an “offence.” Even though these terms have different meanings around the world, the innocent mistake defense to misrepresentation does not encompass misunderstanding forms.
Examples of what is an innocent mistake
The case of Osisanwo v. Canada (Citizenship and Immigration), is a good example of when the innocent mistake defence would apply. There, a couple stated that a child was theirs, and provided a birth certificate confirming same. They both genuinely believed that the child was theirs and had raised him. However, DNA testing indicated that the “father” was not really the boy’s father, and that the child was actually the product of an extramarital affair. While Canadian immigration authorities sought to have the family barred from Canada for misrepresentation, Justice Hughes disagreed. He wrote that there had to be a limit as to what applicants were expected to disclose in Canadian immigration applications, stating:
“History is replete with children born to and raised by a married couple, believing it to be their own. Must an applicant seeking entry into Canada disclose every extramarital relationship conducted at a time where there is any possibility that a child might have been fathered by someone other than the husband? Surely our society has not found itself at that point.”
Indeed, children being born out of wedlock without a partner’s knowledge appears to be one of the most common examples of the innocent mistake defence.
Other examples of where the innocent mistake applies is where someone was a kid when their parents unsuccessfully immigrated to Canada, and did not sign their own forms.
Avoiding misrepresentation in your immigration application
Given how narrow the innocent mistake defence to misrepresentation is “honesty is the best policy” might not be enough. It is important that applicants take the extra step to diligently verify the accuracy of what they are submitting, and to seek clarification of any terms that they might be unsure of.