I am not current with Foreign National (FN) application processing, so am responding here well outside the scope of issues I follow; see further caveat below.
Hello
@legalfalcon @dpenabill @canuck78 @scylla
Need help with IMM 5669 background declaration form.
I was charged for domestic assault (CC 266) last year. I wasn't handcuffed or put in jail. I signed an undertaking and was told to vacate the home immediately and avoid contacting my wife. Few months later, my charges were withdrawn in court and I reunited with my wife.
I have applied for PR under CEC, I have already provided court judgement copy but IRCC has asked me to fill IMM 5669, I have marked as 'No' to all statutory questions but there is this question in the form which asks that if I have ever been - "detained, incarcerated., or put in jail"
Is signing an undertaking also a kind of prohibition or detention? Should I answer 'yes' to this question and explain in detail?
Any suggestions would really be appreciated
Just being charged means IRCC most likely knows about it, even if the charge was totally dismissed (even with no undertaking or such) very soon after being charged.
That is, IRCC will most likely know about this case even if you make no disclosure of it. Even a routine GCMS screening (which is indeed
routine and which, I understand, is typically repeated multiple times during the processing of many applications to IRCC) would likely flag this based on a hit in name-record information in the RCMP database.
Caveat: As I noted initially, it has been many years since I paid much attention to FN applications (I became a Canadian more than 16 years ago, and then became a citizen just a few days more than 11 years ago). Even though many inadmissibility issues involving FNs overlap with inadmissibility issues affecting non-citizen Canadians (that is PRs), the latter being one of the few subjects I do follow and often research, the differences can and often do loom large. And, importantly, even the information and processing I follow (as to PR inadmissibility issues) can get complicated, and it very often does get complicated, which means the best approach to questions in this area is to at least
obtain a paid-for consultation with a competent, reputable lawyer engaged in the practice of immigration law.
What I can offer (some general observations):
Here's the thing, why disclosure with explanation is almost always the best approach: Whether the criminal case matters to IRCC, or does not matter to IRCC, disclosing with explanation will not negatively affect your case anywhere near as badly as failing to disclose it if it does matter.
I do not know whether your particular criminal case requires disclosure in IMM 5669. It might not. But unless you are very certain it does not require disclosure, the safe approach is to disclose and explain.
Again, I do not know (sorry for being repetitive, but this demands emphasis) which question, if any, you should check [yes], but based on what you have reported here, my sense is that it would be OK to check [yes] in response to item b), that is in effect saying yes you have . . .
b) been convicted of, or are you currently charged with, on trial for, or party to a crime or offence, or subject of any criminal proceedings in any other country or territory?
Will explain that further below. First, however, I will more fully explain why generally it is better to disclose.
In particular:
-- if the facts related to the criminal case do not matter to IRCC, if that case will not have any negative impact on your application, disclosing with explanation will NOT hurt your case . . . if this does not matter there is no reason to NOT check [yes] in response to one of these questions, the one you judge to be the most appropriate, and provide explanation (IRCC may follow-up and request certified copies of court record)
-- meanwhile, if this matters, IRCC almost certainly either knows or will know about it, and it will have the impact provided for in the law and rules, so what happens because of this will almost certainly happen whether you disclose it or not (not checking [yes] will not, not likely anyway, avoid the consequences)
-- if it matters, and you do not disclose it, it is likely that would be misrepresentation, which would not only result in the application being denied but also could result in your being adjudicated as inadmissible for the next five years (so no status in Canada let alone being denied PR status)
-- -- but, sure, if you do not disclose this there is a chance that IRCC does not know about it and might process the application without learning of it, but if it matters that would still be misrepresentation and it would make you vulnerable to revocation proceedings FOREVER, even after becoming a Canadian citizen (second to what IRCC discovers in investigating corrupt consultant files, reports from disgruntled partners is perhaps the next most common source triggering misrepresentation cases down the road)
That is, if this does not matter, there is no harm checking [yes] and giving an explanation. If it does matter, not disclosing it dramatically increases the risk of additional and even more severe consequences.
What Matters to IRCC (what is "material" information):
What is "
material" is obvious in many situations, such as where the applicant has a pending criminal charge or a criminal conviction, which is undoubtedly material and absolutely must be disclosed.
Beyond that there is a big, big range of circumstances where things almost always get complicated. Gets weedy. Goes way beyond what I can confidently say.
If in doubt, SEE a LAWYER . . . and do not rely on a free consultation. It is tough to get what you pay for from lawyers (but for those who can afford it, it's usually worth it), let alone get something useful for free.
What makes this such a difficult subject is that what is material is significantly broader than what will actually affect the applicant's eligibility. Something can be material even if it will have no impact on the application (the test is something like what could lead to a possible impact, which goes well beyond what will actually have an impact).
Assuming You Disclose and Explain, What Item to Check [yes]:
Foremost (again being repetitive, for emphasis), I do NOT know how you should answer these questions. You can respond based on YOUR own best judgment if you are very confident, near if not entirely certain of what the appropriate answer is. Otherwise, again, SEE a LAWYER.
As I noted above, based on what you have reported here, my sense is that it would be OK to check [yes] in response to item b) and explain. As I have addressed at length, even if it is totally OK to check [no] in response to this item, checking [yes] should not cause any more problems than your application might encounter otherwise. The advantage of checking [yes] is it illustrates you are forthcoming with information, not at all evasive, not trying to hide anything.
Why do I suggest checking [yes] for this item? The part of item b) that could be applicable is the last phrase: "
subject of any criminal proceedings in any country . . ."
The full item, again, is here:
b) been convicted of, or are you currently charged with, on trial for, or party to a crime or offence, or subject of any criminal proceedings in any other country or territory?
Breaking the question down in context, it is asking:
Have you . . . ever been . . . subject of any criminal proceedings in any country?
And based on what you report here is that yes, you have been subject to a criminal proceeding in Canada, pursuant to which you were charged with domestic assault, which has been withdrawn (you will probably want to BRIEFLY add some details about this).
That's the best I can offer. I am NO expert. Not close. If you have any reservations about how to complete this, again SEE a LAWYER.
