This is a difficult situation.
Assuming the decision itself was indeed unreasonable, it is
best to see a qualified, reputable lawyer AS SOON AS POSSIBLE. As others have observed, there is a limited time within which to seek review of this decision, so time is of the essence, and moreover there is no right to appeal so it is really important to get help from a lawyer who knows how to make a proper application to seek leave for judicial review.
That is, judicial review (appeal) is
possible, but first one must ask, in effect, for permission from the Federal Court, and this is a technical procedure for which a lawyer's help is a virtual practical necessity.
Obviously the back side to this story is its inherent lesson: how important it is to avoid making mistakes in the information provided to the government. Damaged credibility is perhaps the most difficult problem there is to overcome.
Beyond that, some objective observations:
I am sure this has been a painful experience. I do not know to what extent the OP's post here is about looking for recourse or is an exercise in expressing dissatisfaction. Perhaps some of both?
To seek recourse, as already suggested:
lawyer-up, and lawyer-up real soon.
That noted, while some lawyers are perhaps better than others in showing sympathy, the lawyer's job is not about sympathizing. It is about identifying courses of action to rectify wrongs. But a big part of that is also about identifying the issues and assessing the facts and discerning what prospects for recourse there are. That is, objectively looking at what is and why and how it got there, toward identifying where things can go from there.
I am no Canadian lawyer. But I can offer some objective observations about this situation (recognizing as others have, that there are some elements unsaid).
While it involves reading between the lines some, it is fairly obvious the CIC officer determined there was a misrepresentation made to IRCC or CBSA, constituting grounds to deny the citizenship application.
Since this is about misrepresentation, the time span for calculation of residency is not relevant; what is relevant is whether the applicant submitted inaccurate information to CIC, was that information material to the processing of the application, and did it thus constitute a
material misrepresentation of fact. How the information is material is important, but the more important aspect is what the inaccurate information itself was, and how and why it was submitted to CIC.
Tough place to be in. Especially with the five year ban. And then there is the worry whether the misrepresentation could also be grounds for initiating proceedings to revoke Permanent Resident status.
Procedure in this case:
No CJ: The only cases Citizenship Judges decide after August 1, 2014, regardless when the application was made, are
residency cases or, for applications made after June 11, 2015, physical presence cases. Thus, if the grounds for denying the application are based on any reason other than residency/presence that is not a matter which goes to a CJ. Thus, cases which are denied or rejected on the grounds of misrepresentation do not go to a CJ. This appears, quite clearly, to be a misrepresentation case, thus it was decided by a Citizenship Officer not a Citizenship Judge.
The OP believes they adequately responded and explained the "misrepresentation," but obviously the examining Citizenship Officer reached a contrary conclusion. It would be no surprise to experience an officer's overt dissatisfaction when the officer believes the applicants have engaged in deliberate misrepresentation. So the officer's demeanor is not surprising, even if it was rooted in error.
Whether the officer reached an appropriate or erroneous conclusion can be the subject of an application for leave to obtain Federal Court review. The application must be made timely. While individuals do not absolutely need a lawyer, with the process in place since August 1, 2014, with there being no right to appeal, the process is more complicated and a lawyer's assistance is more or less a practical necessity.
Given the consequences of this decision, if at all possible, a lawyer should be at least consulted.
The burden in making a case on appeal is high and difficult, in this situation practically limited to showing there was a significant breach of fairness in the process. Disagreement with the conclusion itself is not grounds unless the decision was so far outside the bounds of an acceptable outcome that it is unreasonable. In other words, no amount of showing it was wrong will warrant the decision being reversed on appeal; it must be shown to be unreasonable in order to be overturned.
I realize some people might equate a
wrong decision with an
unreasonable one. As in, isn't an outcome unreasonable if it is shown to be wrong. But no, that is not how it works. Reasonable people can reach very different conclusions. If the decision is within the range of what reasonable persons might conclude, it is not subject to being overturned on the grounds that a reviewing court thinks the decision itself was wrong.
Looks like there was a fairness letter, an opportunity to respond to that, and an opportunity to be heard in person. So it would be difficult to show there was a material denial of fair procedure. The applicant would need to show something akin to the officer failing to so much as consider material evidence, or reaching a conclusion contrary to any reasonable inference from what is clearly shown in the evidence.
Recent Federal Court decision where a Federal Court did reverse based on unreasonableness of the decision-maker's conclusions:
see http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/143404/index.do
Justice Marineau's decision in an appeal by NAJLAA LABIOUI, setting aside the decision by a Citizenship Judge
The case I cite is a residency case and is an appeal of a decision by a Citizenship Judge, so it is not the same procedure as the OP's case. If the OP is going to challenge the decision, the OP will have to seek leave for review of the Minister's decision (albeit actually a decision by a Minister's delegate, the Citizenship Officer) rather than a CJ's decision.
But some of the underlying principles of review are similar. On its face, it is largely about challenging the factual conclusions reached. Again, this is very, very difficult to do successfully. As the Minister argued in
the case decided by Justice Marineau, this amounts to asking the reviewing court to reweigh the evidence that was before the decision maker (in the cited case, that being the decision by the CJ; for the OP it is the decision by a Citizenship Officer). And that is
NOT the role of the court conducting a review.
The specific question asked is whether what the decision-maker decided
"falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."
As noted, these are perhaps among the most difficult cases to succeed in making on appeal. But some are successful, as it was in
the case decided by Justice Marineau.
Would have, should have . . . another lesson taught:
I already noted the back side of this being the lesson about how crucial it is to be accurate when submitting information to IRCC.
Another lesson here is recognizing the significance of a
fairness letter about misrepresentation. These are not common. There are more than a few probably, but they are not common. Typically IRCC (or CIC as it was before it became IRCC) characterizes discrepancies in terms of compromised credibility, the mistake or misrepresentation being reason to question, or doubt, or challenge the applicant's account of facts. Thus, questions of credibility are usually a factor in weighing the evidence overall, and this is usually about evidence or claims as to residency or presence.
A case which is more or less specifically a
misrepresentation case is different. Remember, a finding of misrepresentation is a stand alone ground for denying the application, no matter how qualified for citizenship the PR was otherwise. (Obvious, most cited example, is the applicant who used a Mississauga address, one provided by his consultant, because his consultant said the processing time was much faster in Mississauga; claim is the applicant actually lived in Montreal, so he was still resident and present in Canada, just in a different city. Denied. Did not matter he actually met the residency requirement. The false information submitted was grounds to deny.)
In particular, if IRCC identifies a factual discrepancy as reason to overtly address it as a misrepresentation,
this is a big deal. Heads-up: big problem looming. Heads-up: probably time to
lawyer-up.
Just plain heads-up!
I have not seen one of these letters. My guess is that they look like just about any other communication from IRCC, almost generic. That is, they probably do not give notice, in any print let alone in bold, that they are what is described as a
fairness letter. My impression is that they simply notify the applicant of an issue and offer the applicant an opportunity to respond. And do not overtly suggest let alone specify the importance such a letter has.
As the OP here describes, they simply received letters requesting the applicants to
"clarify two points of misrepresentation in their applications."
Probably did not look that much different than the letters other applicants sometimes receive, such as a request to submit a copy of a rental lease.
But there is a difference.
If the term "misrepresentation" was explicitly used that is probably more than some in a similar situation might be told. Less salient terms like "discrepancy" might be used. The term "misrepresentation" might not alert many, but to anyone familiar with CIC/IRCC procedure, it is a term which rings bells and flashes lights and waves a huge red flag. Some emphatic expletives come to mind.
And the problem is that by the time this kind of letter is sent to someone, the officer deciding to send the letter has largely already made up his or her mind that this was indeed a misrepresentation. Not a mistake. Not an oversight. A
misrepresentation, and that makes it a very big deal.
In any event, while it might not always be easy to recognize a
fairness letter as such, anyone who receives a
fairness letter which is about misrepresentations or discrepancies needs to take immediate action, and consulting with a lawyer is among the first and more important actions to take. This is serious stuff. The consequences can be severe and go beyond being denied citizenship. Government housing of the not-at-all pleasant sort could be looming in the wings.
The Sad Side:
Even among those who were not altogether innocent, many times these things arise more from misunderstanding rather than an overt scheme to mislead. Indeed, many times mostly innocent persons are persuaded by others to give information or answers which are not accurate because the inaccurate answer will, supposedly, be better. Bad advice. There is a lot of such bad advice.
And then some people have a great deal more difficulty explaining how and why the inaccurate information was given, and the misunderstanding is made worse, the problem is made worse. My impression is that those with fraudulent intent tend to be better prepared to navigate this while those who are confused, and misled by bad advice, are the ones who tend to fall deeper and deeper into a problematic transaction with IRCC/CIC, and end up being punished more than the real culprits.
All I can offer is the typical caution I often give: follow the instructions and do your best to be complete and accurate. Beyond that, if mistakes are made, correct them sooner rather than later; but if there is any sign that IRCC is focusing on compromised credibility and especially if there is any indication IRCC is identifying erroneous information as a "misrepresentation," then it is time to
lawyer-up.
