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Today is April 1 or, as it is otherwise known, April Fool’s Day. Since we’ve just completed a month of fraud awareness and prevention, it seems like a good opportunity to write about “not being a fool” or “being fooled” and provide some timely reminders and tips for your own practice in terms of “fraud”.
As practitioners we often think of fraud in terms of clients not sharing the truth, disclosing relevant information, or providing fraudulent information. Our clients might ask questions such as “Do I need to disclose that? Is it important?” We might ourselves, when considering strategy for a case, be thinking about the best way to tackle something that was not disclosed previously or look to “correct” a mistruth. In legal language, we refer to this as “misrepresentation,” explained fully in Section 40 in the Immigration and Refugee Protection Act.
That section of the law is incredibly important because it states that a permanent resident or a foreign national can be inadmissible for misrepresentation:
- For directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that could induce or cause an error in the Administration of this Act. For example, is it necessary to declare a child or a previous marriage? It was the applicant who lied, so does that impact the dependents on the same application? The answer is yes and yes.
- For being or having been sponsored by a person who has been determined inadmissible for misrepresentation. For example, John, a permanent resident (PR) is in the process of sponsoring his new wife Wanda. Someone has written to IRCC to advise that the job offer/LMIA that John used as part of his immigration application was fraudulent. The sponsorship for Wanda has been put on hold by IRCC while John’s PR misrep allegation is investigated.
You can read the link in more depth to review the scope beyond what is noted here. A40 must be read in conjunction with A 16 – that is:
Obligation — answer truthfully
16 (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
Where it is clearly stated that any person making an application (temporary or permanent) must tell the truth and produce a visa, relevant documents and evidence as required. It can involve counsel when:
126 Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.
Misrepresentation 127 No person shall knowingly
(a) directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
(b) communicate, directly or indirectly, by any means, false or misleading information or declarations with intent to induce or deter immigration to Canada; or
(c) refuse to be sworn or to affirm or declare, as the case may be, or to answer a question put to the person at an examination or at a proceeding held under this Act.
The law clearly advises that both applicant and counsel, must tell the truth, disclose information and not mispresent or withhold facts. Section 128 also lays out the penalties for misrepresentation and we know for clients who misrepresent, the result can be significant bans.
If you are in doubt about your responsibilities, please consult the ICCRC professional code of ethics, where articles such as good faith and duty of honesty and candor resonate. While this is straight forward, below is a simple list to think about when you think you might suspect fraud or are in doubt about what to do.
- Have a strong retainer that lays out repercussions of not being truthful or mispresenting. Protect yourself and CYA! Have your client initial various sections of the retainer to indicate understanding.
- Have an in-depth questionnaire, assessment or consultation, where you ask the necessary questions to draw out relevant information. There are questioning or interview styles that can help to draw people out.
- You want to establish a level of trust or comfort where your client is comfortable to reveal information that may be often difficult for them to discuss. At the same time, it is necessary to be frank about the repercussions of not being truthful. So, strike a good balance in tone.
- If there is previous immigration history, ATIP it, and ask for copies of previous files/correspondence that your client might have.
- It is often a good idea to recap, interview, or receive instructions from the client in writing, so there is clear record.
- If you see red flags, trust you gut – don’t be afraid to reconfirm information or ask for clarity. Red flags can include a reluctance to answer questions, provide documents, or refusal to comply with instructions. Often an empathic and understanding tone may help clients overcome initial reluctance.
- It’s okay to change your mind on a file and withdraw, as long the file is not prejudiced. You may charge for your work completed on the file and move on, or perhaps you’ve just retained, and no work has been done, but your gut tells you something is off. It’s easy to issue a refund and discharge the client. Perhaps at the end of the first consultation, you sense something is off. An easy out is “So here’ is my opinion on your situation…but at this time I just unable to take your case as I have number of pending cases and feel I am unable to devote the right amount of time or attention to your situation.”
- You may get a new file that has previous misrep on it – or you discover the misrep or mistruth on your own file halfway through the process - don’t necessarily discard the file or client. The file may still be salvageable and there could be compelling circumstances or facts you don’t know. Immigration is not always black and white, sometime there is gray too. Keep a list of persons who specialize in “misrep” handy and seek a second opinion or look to co-counsel if you believe the situation is more complicated. Have a heart-to-heart conversation with your client about the important of truth, and how the impact of misrep can harm the current file.
- Develop a network of professionals around you so perhaps you can bounce around ideas, discuss things, or ask for relevant case law. Remember your confidentiality obligations!
- Finally, just before you are ready to press submit or submit the application package, contact your client again and have one final conversation – “Have you told me everything I need to know? Is there anything that you ‘forgot’ to tell me or disclose? It’s much easier to deal with these things before we SUBMIT your study permit or application.” Often that last conversation (in writing too) will elicit crucial information!
- One more – have your clients review the forms and submission letter to make sure all the information is accurate. After all it’s about them!
Final words – Have good questions, a strong retainer, a good network, and trust your gut! You are nobody’s fool!
Have any tips to add on this topic? Write to email@example.com and we’ll share them in a follow up blog or if you wish to tackle an article in an educational way, write to me!
Author: Monica O’Brien, RCIC