Misrepresentation in Canadian Immigration: Section 40 and the Five-Year Ban

What section 40 says

Under section 40(1)(a) of the Act, a permanent resident or foreign national is inadmissible 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 the Act. The words "could induce" matter: the misrepresentation does not have to succeed or change the result.

Section 40(1) also covers being sponsored by a person who is determined to be inadmissible for misrepresentation (paragraph (b)), and a final determination to vacate a refugee protection decision (paragraph (c)). Misrepresentation can be made to IRCC, the Canada Border Services Agency or the Immigration and Refugee Board.

What counts as misrepresentation

• False or altered documents, such as bank statements, employment letters, marriage certificates or school records.
• Leaving out information the forms ask for, such as a previous visa refusal, a criminal charge or arrest, a previous marriage, or a family member.
• Inconsistent answers about work, school, travel or relationships across applications.
• Information provided by a third party on your behalf. You remain responsible for what is submitted in your name, so read the forms before you sign.

Intent is not required in the same way as in criminal law. The Federal Court has recognised a narrow exception where an applicant honestly and reasonably believed they were not withholding material information and the information was beyond their knowledge, but it is hard to rely on. Our page on criminal inadmissibility also explains why disclosing charges and arrests truthfully matters.

The five-year period

Section 40(2)(a) says the person continues to be inadmissible for misrepresentation for five years following a final determination of inadmissibility, if the determination was made outside Canada, or following the date the removal order is enforced, if the determination was made in Canada. Section 40(3) says a foreign national who is inadmissible under this section may not apply for permanent resident status during that period.

In practice an inadmissible person also cannot meet the requirements for a temporary resident visa, which require that the person is not inadmissible (Regulations, section 179). A person who is outside Canada after an exclusion order issued for misrepresentation must obtain written authorization to return during the five-year period (Regulations, section 225(3)). See our page on authorization to return to Canada.

How a finding is usually made: the procedural fairness letter

Before deciding, an officer who has a misrepresentation concern will usually send a procedural fairness letter. It states the concern and gives a deadline to respond. A well-prepared response can sometimes resolve the concern, for example by explaining a mistake, providing a missing document or correcting inconsistent information. A poor or late response can lead to a finding.

If you receive such a letter, do not respond with new documents that you cannot verify and do not guess. Gather evidence, review the whole file, and get advice before you submit anything. See our page on procedural fairness letters.

After a finding: what options exist

• Federal Court. You can apply for leave to commence judicial review. Under section 72(2)(b) of the Act, the deadline is 15 days for a matter arising in Canada and 60 days for a matter arising outside Canada. The court reviews whether the decision was lawful and reasonable.
• Appeal to the Immigration Appeal Division. A permanent resident who is subject to a removal order may appeal under section 63(3), subject to the limits in section 64. A sponsor's appeal of a refused family class application is generally not available where the refusal is based on misrepresentation, unless the person is the sponsor's spouse, common-law partner or child (section 64(3)).
• Waiting out the period. The five-year inadmissibility period ends, and a new application can be made with complete and accurate information. Previous findings must be disclosed.
• Temporary resident permit or humanitarian and compassionate requests, in limited cases and subject to their own rules.

Family members

Section 42 of the Act can make a foreign national inadmissible because an accompanying family member is inadmissible. For temporary resident applicants, the rule is narrower: a family member's inadmissibility affects them only in specified situations, such as security grounds. For permanent residence applications, a family member's inadmissibility can affect the whole application, so the consequences should be checked before a family applies together.

Reducing the risk before you apply

• Answer every question, including questions about previous refusals, charges, marriages and children.
• Make sure employment, education and travel history are consistent across all applications.
• Keep copies of what was submitted and read it before signing.
• Do not allow anyone to include information you cannot support.
• Use only licensed advisers: lawyers licensed by a law society, or immigration consultants licensed by the College of Immigration and Citizenship Consultants.

How we can help

We review applications for misrepresentation risk before they are filed, respond to procedural fairness letters, and act in Federal Court and before the Immigration Appeal Division where appropriate. We meet clients in English, Urdu, Hindi and Punjabi. We cannot promise a result, and the decision belongs to IRCC, the Immigration Appeal Division or the court.