Risk of misrepresentation finding. What's the best course of action now?

[liveandlearn]

Hi Experts,


I need some advice in how to proceed with an application that may run into misrepresentation problems.

Me and my wife applied for permanent residence sponsorship for my parents in law at the beginning of 2015.

My father-in-law was charged with a serious crime more than 10 years ago, was arrested and put in jail for an extended period but was acquitted. His lawyer in that case told him the police file was supposed to be have been destroyed and that it should be “as if it never had happened”. That led us to answer no to the question “have you ever...been detained, incarcerated or put in jail?”. I know now this was a huge mistake and if I had known what I know now we would never have done it. At the time we didn’t grasp the problems that this would bring us and we certainly didn’t know all we know know about misrepresentation and the penalties associated.

We got to the part where the police certificate was requested (in our country it’s not submitted with the initial application) and because my parents in law were visiting at the time the Canadian Embassy requested the police certificate directly.

The immigration officer recently wrote back with a copy of the police certificate for my father-in-law. The certificate says that they found an entry in their database of criminal type and does not provide any more information.

The immigration officer asked for court documents related to charges he has had. The officer hasn’t mentioned anything about misrepresentation.

My father-in-law has copies of this documents and we have them translated and ready to go.

At this point, our main objective is to avoid a 5 year ban for misrepresentation.

We are seeking advice on how to proceed. As I see it, we have the following options:

1. Just send the documents and hope for the best.
   
   
2. Submit the documents plus an updated form with the correct answers and explain why we gave the wrong answers in the original form.
   
   
3. Request for the application to be withdrawn. From what I gather this would mean withdrawing the sponsorship but we would have to look into it more.
   
   
4. Don’t send anything and hope that they cancel the application. I’m guessing this is not a good idea but just including for completeness.

I’ve talked to an experienced immigration consultant, two immigration lawyers and a lawyer that practices immigration and criminal law. So far and I’ve gotten a few different recommendations.

The consultant said that if the immigration officer were thinking about misrepresentation she would have brought it up already and we probably would be fine if we just send the documents we have. She also said that withdrawing the application would almost certainly cause the immigration officer to leave the file alone and not pursue misrepresentation.

The immigration lawyers suggested we have a good chance of having a successful application and that the best course of action would be to retain them to prepare a thorough response.

The immigration and criminal lawyer said the immigration officer may be just looking to gather evidence for misrepresentation charges so we shouldn’t send them anything else and that withdrawing the application would give us the best chance to avoid a misrepresentation ban.

I’m appealing to your experiences and collective wisdom to help us take a decision.

Do you have any input on what would be the best course of action?

Any guidance will be greatly appreciated.

 

[scylla]

I would personally withdraw asap. There's definitely a possibility the officer is gathering info for a misrepresentation finding. In criminality situations, the first step is to typically ask for more information about the potential criminality issue. At this point it's too early to be mentioning misrepresentation - the officer is still gathering information. So it wouldn't be at all surprising if the intent to refused letter comes next. If your objective is to avoid any chance of a misrep and a five year ban - withdraw the application now.

Your father should have answered "yes" to the question in the application. So if the officer wants to pursue misrep - there would certainly be very solid grounds to do so.

 

[canuck_in_uk]

I agree with scylla that withdrawing is the best option.

 

[liveandlearn]

Thank you very much for your advice. It's really great that you take the time to help people out.

A couple of follow up questions:

According to the CIC website you are supposed to give "The reason for the withdrawal" in the request for withdrawal of the sponsorship application. The lawyer that suggested withdrawing the application told me you are not legally obligated to give a reason and to just don't provide any. Does that sound right?

Do you think we run any risks by getting the immigration file through an ATIP request? We would have to wait at least 30 days to get that. I guess they could be doing they own digging in the interim but probably they'd just be waiting for our response and we may be able to glean some information.

The application was submitted when the penalty was a 2 year ban, would the ban if found to have misrepresented would still be 5 years despite that?

Thank you in advance.

 

[scylla]

I would list the reason for the withdrawal as: 'error in application forms'

I personally wouldn't risk the 30 days - but obviously your call. It's impossible for any of us to say what will happen during these 30 days. The longer you wait, greater the potential risk. If this is moving towards misrepresentation, at some point it will be too late to withdraw.

You would fall under the 5 year ban. Doesn't matter when you submitted your application. What matters is when the misrepresentation finding is made.

 

[liveandlearn]

Thank you again.