Ignorance of Material Facts and Misrepresentation

June 8, 2010 

If you do not know about a material fact, can you get caught under section 40(1)(a)
of the Immigration and Refugee Protection Act?

The answer to the question appears to be yes.

s. 40(1)(a). A permanent resident or a foreign national is inadmissible for misrepresentation for directly or indirectly misrepresenting or withholding material facts related to a relevant matter that induces or could induce an error in the administration of this Act;

Wang v. Canada (Minister of Citizenship and immigration) [2006] FCA 345 (October 24, 2006) –
I would like to thank Mr. Maynard for bringing this case to my attention during the 2009 CBA National Immigration Law Conference in Whistler, British Columbia.

Ms. Wang was a citizen of China and a permanent resident of Canada. She was married in 1990. She came to Canada as a study permit holder in 1996. Her husband applied as an entrepreneur and became a permanent resident along with her in 1998. She and her husband had a Canadian born daughter in 1999. In 2001, she applied for Canadian citizenship. During the processing of such application, it came to light that her husband was in fact married to another person at the time of her marriage! In fact, he had another child with his first “spouse”. As a result, he was found to be in breach of section 40(1)(a) and received an exclusion order against him. In addition, Ms. Wang was found to be in breach of section 40(1)(a) INDIRECTLY along with her husband.

She took her case to the immigration Division, then the Immigration Appeal Division, the Federal Court, Trial Division and finally to the Federal Appeal Court to retain her permanent resident status in Canada.

In every proceeding, she was found to be in a breach of section 40(1)(a) INDIRECTLY! In fact, according to the Federal Court of Appeal, she was actually found to be in a breach of section 40(1)(a) DIRECTLY because she declared her marital status as “married” when in fact she was not married because her marriage to her husband was null and void as a result of him having another spouse without receiving a divorce at the time of her marriage to him!

Therefore, even if you do not know of a material fact, if it is found to be a material fact to be “withheld” or “misrepresented”, then it is a misrepresentation indirectly regardless of the lack of subjective knowledge or innocent misrepresentation at the end.