Procedural Fairness Letter for Section 40 Misrepresentation Case

[Mansi]

My younger sister applied for visitor visa for USA. While no decision was made on her application by US officials, she filed study permit application for Canada. She received refusal from USA and visa officer at Canadian High Commission has sent her a letter of procedural fairness that she did not declare her refusal. Actually when she applied for study permit for Canada, he visitor visa application was in process and there was no decision on the application. Can you help us to respond to procedural fairness letter?

[Rajpal (Admin)]

Yes, your sister can retain us for procedural fairness response services. I hope when officer made the decision on study permit application, (s)he may not have realized that the refusal of USA was not into existence when the study permit application was submitted.

Advise your sister to act quickly in the given time frame otherwise not only her application will be refused but she may be barred for 5 years to submit any application to Canada. Section 40 of ‘Immigration and Refugee Protection Act’ (IRPA) deals with misrepresentation.

Misrepresentation

• 40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

  • (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

  • (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

  • (c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or

  • (d) on ceasing to be a citizen under

    • (i) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force,

    • (ii) subsection 10(1) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act, or

    • (iii) subsection 10.1(3) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act.

• Marginal note:Application

  (2) The following provisions govern subsection (1):

  • (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

  • (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

• Marginal note:Inadmissible

  (3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a).