The innocent exception rule applied in misrepresentation cases in immigration law. The applicable provision in IRPA is s. 40(1)(a). The provision applies to direct and indirect knowledge by the applicant. The issue that arises is whether or not the misrepresentation was objectively under the control of the applicant. Justice Strickland in the Pandher v. MCI 2022 FC 687 decision approved the judicial review on the basis that the consultant in this case altered the grades of the applicant in their application for a study permit “after” the applicant had reviewed their application and signed the necessary forms. The visa officer did not deal with the innocent exception rule and erred in failing to do so.
In another decision, Kaur v. MPSEP 2023 FC 87, Justice McDonald found that the test of innocent mistake is not applicable as the applicant had the ability to call the school in question in Canada from India to confirm that she was in fact admitted into their college rather than completely relying on the efforts of the consultant. In this case, the consultant submitted a fraudulent letter of admission to which the applicant had no knowledge of. She went to Canada and then got accepted into another school, graduated and later applied for post grad work permit. There was an ensuing investigation by CBSA which resulted in a s. 44 report being written and a removal order issued by the IRB ID board. She challenged that decision unsuccessfully. It is important to bear this case in mind as it is a reminder that a misrepresentation continues into the future and is never actually “settled” unless and until the applicant has dealt with the matter head on. In this case, the applicant should not rely on the actions of their consultant in India to their detriment but must be proactive and ensure compliance with the school admission process. To do otherwise is not demonstrating full control of the facts which the applicant has in the matter such as the facts in this case.
Misrepresentations of material facts have become a significant area of concern by both IRCC and CBSA officials. It is a reminder that an applicant and their legal representative must be vigilant in their legal representation.
David H. Davis is the founder and owner of Davis Immigration Law Office. He and his team can be reached by email at: david@daviddavislaw.com on the web at www.daviddavislaw.com or by phone at 204-956-2336 extension 208. David has over 33 years of legal experience in Canadian immigration legal matters.