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    The truth shall set you free

    The consequences of misrepresentation

The immigration process can be very complicated and sometimes daunting. However, regardless of how intimidating or intrusive the questions on the application forms may seem, this does not give the applicant the right to lie or give false answers and documentation. The questions asked and the documents requested are required for a reason. And only Immigration has the right to waive certain requirements or change the rules.

In my practice I have come across a number of common situations where a lie, no matter how innocent the intentions, could lead to a charge of misrepresentation. Consider the following three scenarios:

1. Sabi nila, hindi ko raw kailangan i-disclose ang anak ko dahil wala naman akong asawa.

A man’s girlfriend gives birth to their child before he receives his immigrant visa. He is carried as a dependent on his parent’s application and is not married. He does not disclose the birth of his child to either the Canadian Embassy or immigration officials at the Port of Entry.

2. Sabi nila, kung may asawa daw ako, hindi ako qualified para maging caregiver.

A woman applies as a Live-in-Caregiver. She is married with two children but does not disclose either her spouse or her children in her application or at the Port of Entry.

3. Sabi nila, ang civil ceremony raw, eh, hindi talaga totoong wedding.

A woman gets married in a civil ceremony and not in a church. She immigrates to Canada under the Provincial Nominee Program without disclosing the marriage.

In each of these situations, when the individual becomes a permanent resident they would be eligible to sponsor certain immediate family members under the Family Class. The question now becomes: are the family members left behind considered members of the Family Class?

On the application forms it clearly states:

All family members of a would-be immigrant, whether accompanying or not, must be examined. If you previously made an application for permanent residence and became a permanent resident of Canada, your family members who were not examined in accordance with Canadian Immigration Regulations at the time you made your application, are excluded from the family class and you may not sponsor them.

In each of the above situations, the individual would not be allowed to sponsor their family because they were not disclosed and examined prior to the visa being issued. The basis for this decision is found in section 117(9)(d) of the Immigration and Refugee Protection Regulations.

In situation #1, the man simply had to tell the Embassy that he had a new child. This child would then undergo a medical examination. If the child passes the medical, the child can either accompany the man to Canada or be sponsored at a later date. By not disclosing the child, the man is now barred from sponsoring the child. In addition, both he and his parents could face possible misrepresentation charges if he attempts to sponsor the child.

In situation #2, the fact that a person is married with children has absolutely no baring on a person’s application to become a Live-in-Caregiver. Immigration simply wants to know if you meet the educational and work experience necessary to be a caregiver. Disclosing a spouse and children would not bar an individual from the program. There would have been no harm in disclosing these facts. However, by not disclosing these facts, the caregiver is now faced with having to explain to immigration why she lied when she tries to file for permanent residence status. Again, this could lead to a charge of misrepresentation.

In situation #3, regardless if it was performed in a church or at city hall, all marriages, if properly conducted according to the laws of that country, are legal in the eyes of the Canadian government. By not disclosing the marriage, the woman essentially lied to Immigration and therefore cannot sponsor the man as her spouse. Should she attempt to sponsor him, her initial application to immigrate will be questioned and she may be charged with misrepresentation. A charge that was very easy to avoid had she disclosed the marriage. Had she disclosed, the husband would have had to undergo medical examinations, pass the criminal checks and, as long as the couple met the financial requirements, both could have immigrated to Canada together.

I have found that three things motivate individuals to “lie” or misrepresent themselves to Immigration. The first is fear, the second is inconvenience and the third is ignorance of the facts.

Consider this: you suddenly find yourself with a new child, months before you immigrate. What do you do? You don’t know the rules and people from every corner are giving you advise such as “If you tell immigration they’ll take your visa back” or “You’ll have to wait another year before you can go to Canada.” Who do you listen to?

If you don’t know what the rules are, ask. And don’t just ask your friends and neighbours – contact Immigration directly or seek the assistance of a qualified professional. Yes, there is no denying that advising Immigration of your new circumstance will cause a delay. But would you rather leave for Canada on schedule but be prevented from sponsoring your child later on, or would you rather suffer the inconvenience of a few extra months in the Philippines but be able to guarantee that your child will accompany or follow you to Canada?

Fear of the unknown often has a paralysing effect on people. However, if you fear the answers to your questions surrounding your new circumstances, how can you possibly uproot yourself from all that you know and move to a new country that has a different culture, language and climate?

There are thousands of people throughout Canada who find themselves in situations similar to the ones I have discussed in this article. Many have spent years fighting their own misrepresentation cases only to be faced with the additional uphill battle of trying to sponsor their excluded family members. Because the family members are considered excluded under the Family Class, many are submitting applications based on humanitarian and compassionate grounds (H&C). However, the approval rate for overseas H&C cases is quite low and the process is extremely lengthy.

The Canadian Bar Association is aggressively lobbying Immigration to revisit these rules. However, until such time as the regulations can be amended, a word of advice to all: If you are planning to immigrate to Canada, before you make a mistake that could affect you and your entire family, take the time to know the rules and ask for proper advice. If all else fails, remember the adage, the truth shall set you free.

The content of this article is not intended as legal advice and is for information purposes only. Should you require legal advice on a specific issue relating to the contents of this article, please seek the services of a legal professional.

Alona C. Mercado is a lawyer practicing in Winnipeg with the law firm of MONK GOODWIN LLP. She was called to the Manitoba Bar in 1999 and the Ontario Bar in 2003. Her preferred areas of practice include wills and estates, committees, real estate and immigration law. Alona can be reached at (204) 956-1060 ext. 233 or amercado@monkgoodwin.com.

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