During the boom of immigration trends over the past years, you may have heard a few stories about people losing money by hiring illegal consultants.Besides financial loss, alarmingly, people may also suffer irremediable legal consequences. The recent judgment in Kaur v. Canada (Citizenship and Immigration) 2023 FC 1454 (“The Kaur case”), once again reminded us of the importance of retaining a credible and trustworthy immigration lawyer or duly registered consultant. Notably, the Federal Court considered that due to a dearth of practical ways to hold foreign-based consultants accountable for their fraudulent acts, whoever retained those illegal consultants shall be held responsible.

The Kaur case

Ms. Kaur is an Indian national. She was found inadmissible to Canada as her study permit application was tainted with misrepresentation. Specifically, the immigration consultant she employed, included a fraudulent letter of acceptance from Loyalist College. Ms. Kaur argued that she was unaware of this fake letter in her application package, and therefore she was not making a misrepresentation. In Canada, the law of misrepresentation immigration jurisprudence mainly contemplates if an applicant provides a false statement of material fact that induces an immigration officer to make a favorable decision. At worst, misrepresentation may lead to the dismissal of an application and render an applicant inadmissible to Canada. Nonetheless, there are exceptional circumstances where the applicant is not liable if he made such misrepresentation innocently. The question in the Kaur case, therefore, is whether the Immigration Department in Canada made an unreasonable decision by concluding that the innocent misrepresentation exception does not apply to Ms. Kaur.

Innocent Misrepresentation Exception

Chief Justice Crampton in the Kaur case opined that the innocent misrepresentation exception only applies when the three-prong test is satisfied:

• • (i) the applicant honestly believed they were not representing a material fact;
  • (ii) the applicant’s belief was reasonable; and
  • (iii) knowledge of the misrepresentation was beyond the applicant’s control[1].

Although the Court accepted that Ms. Kaur honestly believed she was not making misrepresentation when her consultant submitted the application package, Ms. Kaur failed to demonstrate the remaining two limbs of the threefold test. For one, it is unreasonable that Ms. Kaur placed so much trust in a consultant based on a rough internet search and had no doubts about the authenticity of its business. For another, the unawareness of submitting such deceitful information was not beyond her control. Ms. Kaur could have simply called the respective education institution or insisted on reviewing the application package to verify its correctness before sending it to the immigration officials. The fact that Ms. Kaur “blindly trusted the consultant” constituted a fatal gist in satisfying this treble test. Eventually, the Court found that Ms. Kaur was not entitled to the innocent misrepresentation exception.

In rejecting Ms. Kaur’s contention, the Court stipulated that it is objectively unreasonable if the applicant fails to review their full application package to ensure its accuracy, especially if the applicant has signed a blank application form. Therefore, the applicants should be assigned full responsibility for the fraudulent behavior of their authorized consultant. The Court then further emphasized, if the applicants are allowed to escape from consequences resulting from the unethical practices of their consultants, this will undermine the integrity of Canada’s immigration system.

Moral of the story

We have learned a straightforward yet thought-provoking lesson in the Kaur case: If you plan to engage a third party to prepare your immigration application, keep in mind that you should not “blindly trust the consultant” as this will put yourself at risk. The best way to avoid misrepresentation is to hire a Canadian lawyer registered with a law society in Canada like the Bar of Quebec, the Law Society of Ontario, and the Law Society of British Columbia, or a duly registered Canadian Consultant, who can help you navigate the immigration application process lawfully.

Footnotes

[1] Kaur v. Canada (Citizenship and Immigration) 2023 FC 1454 at Para 26