A3(1) and A3(2) describe the objectives of the immigration program.
Categories of foreign nationals
These categories are
The Act or Regulations define members of the family class, Convention refugees abroad class, country of asylum class and source country class. The Regulations also define the economic class, which consists of
Children of unmarried parents
Children of unmarried parents may be sponsored by either parent. They may also be accompanying family members of either parent. To preclude future custody disputes, officers should, whenever possible, obtain consent for the child’s immigration from their other parent or legal guardian.
In cases in which all possible proof of relationship is inadequate and the circumstances of the case do not warrant special consideration, officers should refuse the application. If the child has been listed as an accompanying family member, the principal applicant may delete the child from the application. Divorced foreign nationals
As well, it is illegal to abduct a child under 16 (Criminal Code, section 280(1)) or under 14 (Criminal Code, section 281) from the legal guardian (father, mother, guardian or other). Applicants, accompanied by children under the legal guardianship of someone who has not agreed to let them travel, are about to commit a criminal offence. They do not commit the offence until they depart for and arrive in Canada [They would then be inadmissible at the port of entry under A36]. If there are reasonable grounds to believe applicants are about to commit an offence as described in A36, officers should explain the situation to the applicants. The applicants must prove they will not be inadmissible for this reason. Written consent of the legal guardian or, if that is not possible, permission of a court, is satisfactory proof. If the court attached conditions to a custody order (usually visiting rights), the officer must ask for the same proof of consent. DNA test for relationship
Citizenship and Immigration Canada (CIC) accepts DNA test results as proof of parent/child and sibling relationships. A DNA test to prove relationship is a last resort. The DNA companies listed in Appendix E are to provide test results that are at least 99.8% certain. Paternity test results below this level are not acceptable.
CIC does not have the authority to direct clients to choose one laboratory over another.
Requirement for truthfulness
Applicants should be advised, where appropriate, that withholding or misrepresenting information that is material to their applications may result in the refusal of that application under A40(1), thereby rendering them inadmissible for entry into Canada for two years after that refusal. A16(1) and A127 require applicants to produce documentation and answer truthfully all questions related to their admissibility.
Untruthfulness may take the form of false oral or written statements, as well as false documents. Officers must decide if applicants intend to mislead an officer or are simply inaccurate. Their untruths must have direct bearing on their own or their family members’ admissibility. Applicants who do not comply with A16(1)(a) and A127 may fall under A40(1) for misrepresentation. If there are no other grounds for refusal, an officer must consider whether the untruth was pertinent to the question of admissibility.
Verification of documents sometimes reveals that documents submitted by applicants are fraudulent; this does not automatically lead to inadmissibility. These documents may not be material and/or relevant and/or may not induce an error in the administration of the Act.
Misrepresentation
Definitions
Misrepresentation: Misstating facts to obtain money, goods, benefits or some other thing desired by a person who might otherwise not be entitled to it. Misrepresentation may also be referred to as "false pretences." Withholding: To hold back from doing or taking an action; to keep (within); to refrain from granting, giving, allowing or “letting ‘it’ be known.” A person can misrepresent themselves by being silent just as easily as a person who actively states a “mistruth.” A person who refuses or declines to answer a question, preferring instead to allow outdated or false information to be accepted as current or true information, is engaging in the activity of misrepresentation. Direct and indirect misrepresentation: Direct misrepresentation includes situations where the person makes a misrepresentation or withholds information themselves—on their own behalf. Indirect misrepresentation: Situations where the applicant does not make the misrepresentation themselves but, rather, it is done by someone else—a third party to the application. For example, a consultant or agent for an entrepreneur submits a monitoring report on behalf of the entrepreneur and provides false information on the establishment of a business. The misrepresentation need not be willful or intentional—it can also be unintentional.
An applicant need not be aware of a misrepresentation in order to be found inadmissible on the grounds of A40. CIC has the policy responsibility with respect to misrepresentation [A40]. Section A40 applies to: • applications for permanent residence; • applications for visas for permanent resident status; • applications for temporary residence; • applications for student and work permits; and • renewals and extensions of status, whether these applications are made abroad, at the ports of entry or in Canada. However, the misrepresentation provisions do not apply to protected persons. Section R22 provides that those persons who have claimed refugee protection, if disposition of their claim is pending, and protected persons are exempted from the application of the misrepresentation provision.
In addition, the misrepresentation provisions do not apply to family members abroad of protected persons by virtue of sections R176 and A21. Two-year inadmissibility and return to Canada
Pursuant to subsection A40(2), a permanent resident or a foreign national determined to be inadmissible for reasons of misrepresentation continues to be inadmissible for a two year period following: • in the case of a determination made outside Canada, the date the officer renders a final decision, i.e., the date of the refusal letter; and • in the case of a determination made in Canada, the date the removal order is enforced. Pursuant to section A49, a removal order comes into force on the latest of the following dates, except in respect to a refugee protection claimant [A49(2)]: a) the day the removal order is made, if there is no right to appeal; b) the day the appeal period expires, if there is a right to appeal and no appeal is made; and c) the day of the final determination of the appeal, if an appeal is made. Where a permanent resident or a foreign national is determined to be inadmissible under this provision, and where a request is made to return to Canada within the two-year period, consideration may be given to issue a temporary resident permit (TRP), where warranted. Materiality
• What is relevant is a broader concept than what is material. • All material factors will be relevant. However, what is relevant may not always prove to be material: (1) information requested from applicants will be considered relevant, otherwise this information would not be requested; but (2) this relevant information will not always affect the process undertaken by an officer or the final decision. Only when it affects the process undertaken, or the final decision, does it become material. At this point, misrepresentation of the information means section A40 would apply, regardless of the decision outcome.
In provincial nominee cases, misrepresentation may be an issue that needs to be addressed by CIC as well as by the province.
It is CIC’s responsibility to determine whether applicants are inadmissible. This includes misrepresentation. Before rendering an inadmissibility decision pursuant to A40, the officer must examine issues of relevancy and materiality. As this may be related to the selection decision made by the province, the visa officer should consult with the provincial official to gather all the information necessary regarding materiality and relevancy. The procedure outlined below should be followed in cases involving misrepresentation: 1. As per normal standards of procedural fairness, the visa officer should advise the applicant of the concerns and give the applicant at least 30 days to respond to the concerns. The province should receive a copy of this letter, and the applicant should be advised that the province is being provided with the copy. The agreement of the province is not necessary to refuse based on A40, however, to maintain a refusal in
these circumstances a visa officer will require strong evidence to be able to demonstrate that there was misrepresentation and it was material and relevant, notwithstanding the province’s conclusion. Misrepresentation at visa offices and ports of entry
An application for a visa abroad, or for entry into Canada at a port of entry may be denied based on a misrepresentation made in connection with the current application or examination only, unless the person was previously the subject of a refusal for misrepresentation and the resulting two-year inadmissibility period has not elapsed. Failure to satisfy an officer of certain facts or intentions does not equate to misrepresentation. For example, if an officer does not find a person's stated intention to leave Canada before the expiry of the period authorized to be credible, this is not sufficient to support inadmissibility based on misrepresentation. Rather, non-compliance with paragraph A20(1)(b) would better define the situation as temporary residents must establish that they will leave Canada by the end of the period authorized for their stay. Misrepresentation in Canada
A permanent resident in Canada who obtained status as a result of misrepresentation may be the subject of a section A44 report on grounds of inadmissibility for misrepresentation. In the case of misrepresentation, it is viewed as continuing so long as the person remains in Canada. In the case of misrepresentations made by permanent residents who have become Canadian citizens, there is a possibility of revoking their citizenship pursuant to the Citizenship Act if the misrepresentation was made in order to obtain permanent resident status. See the Citizenship chapter CP 9, section 5, entitled “Revocation of citizenship”.
Visa office procedures in case of misrepresentation
An officer who suspects that an applicant may be inadmissible for misrepresentation should carefully document the reasons for the concern in their notes. They must then provide the individual with information on the basis for their concern and invite the person to respond. This can be done at an interview or in writing. If in writing, the person should be given at least 30 days from the time of receipt of the officer’s notice to respond.
The information provided in the response should be carefully assessed in accordance with the principles outlined in ENF02.
Sponsorship cases of misrepresentation
Where a permanent resident sponsor misrepresents information in a sponsorship application related to the sponsored family member’s application, the family member being sponsored may be inadmissible for misrepresentation as per paragraph A40(1)(a). Vacation of refugee status for misrepresentation
Vacation of refugee status under the Act is deemed a nullification of refugee protection. A46(1)(d) provides that a final determination to vacate refugee status for fraud or misrepresentation also results in a loss of permanent resident status. A40(1)(c) provides that a person will be determined inadmissible if there is a final determination to vacate a refugee protection decision with respect to a permanent resident or a foreign national. However, if refugee protection status was granted pursuant to subsection A95(1), then misrepresentation cannot be used as grounds to apply for vacation of status before the IRB. Where a report is written and a decision is made to issue a removal order, the Act provides that such persons will be issued a removal order by the Minister’s delegate without the need to re-establish the grounds of misrepresentation at an admissibility hearing. Despite this streamlined process up to and including the issuance of a removal order, officers must still be cognizant that the Act provides and authorizes the Federal Court to review decisions relating to all immigration and refugee protection matters. Consequently, officers are advised to also refer to other manual chapters when dealing with such cases, including, ENF 24, Ministerial Interventions; ENF 9, Judicial Review; and ENF 10, Removals. Ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act
Persons who cease to be citizens under the provisions of paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection 10(2) of that same Act, are inadmissible to Canada. Paragraph 10(1)(a) of the Citizenship Act provides for the loss of Canadian citizenship for
reasons of false representation or fraud or by knowingly concealing material circumstances. Paragraph 10(2) provides that: “a person shall be deemed to have obtained citizenship by false representation or fraud or by knowingly concealing material circumstances if the person was lawfully admitted to Canada for permanent residence by false representation or fraud or by knowingly concealing material circumstances and, because of that admission, the person subsequently obtained citizenship.” Fraudulent documents
Verification of documents sometimes reveals that documents submitted by applicants are fraudulent; this does not automatically lead to inadmissibility. These documents may not be material and/or relevant and/or may not induce an error in the administration of the Act. The Immigration and Refugee Protection Act (IRPA) discourage fraudulent immigration applications in two ways: 1. by rendering inadmissible, for misrepresentation, foreign nationals abroad and in Canada. and 2. subsection A64(3) limits the right of appeal for sponsors of family class members who make misrepresentations on applications for permanent residence, to cases of the spouse, common-law partner or dependent child of the sponsor. CriminalityGenerally, persons with a criminal conviction are not admitted into Canada. However, if a prescribed period has passed after they have completed their sentence or committed an offence and during which they were not convicted of a subsequent offence, they may be deemed to have been rehabilitated. If they are not deemed to have been rehabilitated, they may, under special circumstances, be eligible to apply for rehabilitation. Offences outside Canada If you were convicted of or committed a criminal offence outside Canada, your may be deemed to have been rehabilitated if 10 years have passed since you have completed the sentence imposed upon you or since you have committed the offence, if the offence is one that would, in Canada, be an indictable offence punishable by a maximum term of imprisonment of less than 10 years. If the offence is one that would, in Canada, be prosecuted summarily and if you were convicted for two or more such offences, that period is 5 years after the sentence imposed was served or to be served. Offences in Canada If you have a criminal conviction in Canada, you must seek a pardon from the National Parole Board of Canada before you apply for immigration to Canada. For further information, contact: Clemency and Pardons Division If you have had two or more summary convictions in Canada, you may be deemed rehabilitated and no longer inadmissible if
See Table 1 - Eligibility for Rehabilitation for a summary of the type of offences and length of rehabilitation periods. If you or any of your family members have committed a criminal offence, you must provide, in addition to any police certificates or clearances, a full description of the circumstances surrounding the offence and the court record. This information will be reviewed by the visa office and you will receive further instructions. Resources:
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