Your gateway to Canada

Immigration Newsweek

By Atty. Henry Moyal

1. I obtained an offer of employment to work in Canada. The employer obtained the required LMIA and I applied for the work permit at the Canadian Embassy. I was ready to return back to Canada until surprisingly I received a refusal letter indicating that I may be banned for 5 years due to misrepresenting a material fact. The letter says that I did not indicate on the form that I was refused a US Visa in the past. I have obtained visas to Canada before and this was mentioned so it is in their computer, right? I completely and innocently forgot to mention my USA visa refusal this time focussing more on my visa to work in Canada , not USA? What do I do now?

1. Perhaps coincidence, but I have seen an increase in the number of cases in which applications are being refused and the five-year ban implemented for relatively minor misrepresentations. I do not have exact statistics but it seems that Canada Immigration is enforcing the minor representations quite strictly. The most common misrepresentation is the failure to declare the refusal of a past U.S. visa application as in your case. Visa officers seem to have access to the U.S. database and routinely check this for inconsistencies with applications. As well, if an applicant applied previously and mentioned the refusal but later omitted it on a second application, that too can be a misrepresentation.

Unfortunately, the law says under section A40 that any material misrepresentation gets you a five year ban. But what if a person sincerely forgot and made an innocent mistake?

To answer this one must review the operations manual which has long recognized that honest and reasonable mistakes should not

necessarily lead to a severe finding of misrepresentation. The higher courts have adopted this and there are cases that have held that there are exceptions to the law

in particular, where previous U.S. immigration history was not disclosed.

In many cases, the exception has been applied to circumstances where the

information alleged to be omitted was otherwise correctly listed in other

parts of the application or in reviewing other documents submitted as part of the

application. This suggests that there was no intention to mislead.

Did you mention your USA refusal elsewhere? Was it part of a previous submission? Contact an immigration lawyer who will be able to research the case law and provide assistance on this delicate manner.

1. I came to Canada as a student. I graduated and I am now working under an open work permit ( post graduate). I believe I have sufficient points to be an immigrant on my own. However, I will be marrying my girlfriend next month.

She is willing to sponsor me. Can I submit two applications at the same time?

1. As you probably know, each application has its own specific criteria. While the first application requires you to prove you have English language skills and work experience the sponsorship does not. Conversely, the sponsorship require you to prove your marriage is genuine but the first one does not. Therefore, it depends on how you want to file your application. If you are ok with providing both sets of applications and paying two government fees, you can indeed send both simultaneously and wait and see which one is processed faster (and then withdraw the other).

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario.

The above article is general advice only and is not intended to act as a legal document.

Send questions to Attorney Moyal by email canada@moyal.com  or call 416 733 3193